The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE DEBORAH A. BATTS, U.S.D.J.:
Pro se petitioner Earline Robinson ("Robinson") seeks a writ
of habeas corpus under 28 U.S.C. § 2241, challenging the
revocation of his parole by Pennsylvania officials. In 1985,
Robinson was convicted of burglary in Pennsylvania for which he
served nine years in prison. Robinson was subsequently paroled
and allowed to reside in New York pursuant to an interstate
agreement. In 1999, before the expiration date of his parole,
Robinson was arrested in New York for fraudulent accosting.
Robinson, however, was not convicted of or sentenced for this
crime until some time after his parole had allegedly expired. In
2002, Robinson served a 30-day prison term for the New York
charge, and upon his release, Pennsylvania officials immediately
re-incarcerated him, claiming that the New York crime constituted
a violation of his parole. After serving nine months in
Pennsylvania for the alleged parole violation, Robinson was again
paroled and allowed to serve the remainder of his parole in New
York, where he currently resides. Robinson challenges his parole status, asserting that he was no
longer on parole when he was convicted of a crime in New York,
and, thus, that this crime cannot serve as the basis for
Pennsylvania's decision to "retake" him. (Petition for Writ of
Habeas Corpus ("Petition") filed July 14, 2003 (Dkt. 1) ¶ 5.)
Robinson has also moved for appointment of counsel. (Application
for Appointment of Counsel ("Application for Counsel") filed
Sept, 22, 2003 (Dkt. 5).)
Respondent argues that the Petition should be construed as an
application under 28 U.S.C. § 2254, even though Robinson
designated it as an application under 28 U.S.C. § 2241. (See
Memorandum of Law in Support of Motion to Transfer Venue ("Resp.
Mem.") filed Nov. 26, 2003 (Dkt. 7) at 1-2.) Respondent further
moves to transfer venue to the Middle District of Pennsylvania.
(Id. at 5-7.) Respondent has not opposed Robinson's application
for appointment of counsel.
For the reasons set forth below, I respectfully recommend that
the Petition be construed as if brought under Section 2254 and
that Respondent's motion to transfer venue to the United States
District Court for the Middle District of Pennsylvania be
granted. I further recommend that the application for appointment
of counsel be denied at this time, with leave to re-apply for
such relief in the Middle District of Pennsylvania.
On March 14, 1985, Robinson was arrested in Pennsylvania,
charged with burglary, and subsequently sentenced by a
Pennsylvania court to four-and-a-half to ten years in prison.
(Petition ¶ 4(a).) On or about April 7, 1994, Robinson was
released on parole. (Id.) Robinson alleges that he had a
maximum release date from parole of October 2, 1999. (Id.) Approximately one year after being paroled, Robinson was
permitted to reside in New York, pursuant to an interstate
compact, under the supervision of New York parole authorities.
(Id. ¶ 4(b).) Ms. S. Penister ("Penister") was assigned as
Robinson's parole officer in New York. (Id.) On August 30,
1999, while still on parole in New York, Robinson was arrested
for fraudulent accosting, a misdemeanor in New York. (Id. ¶
4(c); Resp. Mem. at 3.) Robinson reported the arrest to Penister,
who, in turn, reported it to the Pennsylvania Board of Probation
and Parole ("Pennsylvania Board"). (Id.)
Robinson alleges that he then continued to report to Penister
in compliance with the terms of his parole, that his status as a
parolee ended on October 2, 1999, as scheduled, and that he
signed release papers to that effect. (Id. ¶ 4(d); Petitioner's
Opposition to Venue Transfer ("Pet. Opp.") filed Dec. 12, 2003
(Dkt. 14) at 1, 4.)
On August 21, 2000, Robinson pleaded guilty to the fraudulent
accosting charge in Nassau County and, in March 2002, he finally
began serving the imposed sentence of 30 days imprisonment.
(Petition ¶ 4(e).) That 30-day term was set to expire on April
15, 2002, but, rather than being released on this date, Robinson
was detained pursuant to a Pennsylvania order and was thereafter
transferred to Pennsylvania, where his parole was revoked and he
was re-incarcerated for his alleged parole violation (i.e., the
New York conviction). (Id. ¶¶ 4(e)(f).) Robinson was
re-incarcerated in Pennsylvania for nine months and then placed
back on parole. (Id. ¶ 4(f).) In May or June of 2003,*fn1 Robinson was
again allowed to reside and serve the remainder of his parole in
New York (id.), where he is apparently being supervised by C.
Davis Atkinson, the parole officer named in the Petition.
On July 14, 2003, Robinson filed his Petition for a writ of
habeas corpus, purportedly pursuant to 28 U.S.C. § 2241,
challenging the validity of the Pennsylvania Board's decision to
revoke his parole and re-incarcerate him. (Id. ¶¶ 5, 6.)
I. CONSIDERATION OF THE PETITION UNDER 28 U.S.C. § 2254
Respondent argues that, although Robinson has invoked
28 U.S.C. § 2241, his Petition should have been brought under
28 U.S.C. § 2254 because it involves a challenge to the validity of the
revocation of parole pursuant to a state court conviction. (Resp.
Mem. at 2.)
Section 2254 governs petitions filed on behalf of any person
"in custody pursuant to the judgment of a State court," "on the
ground that he is in custody in violation of the Constitution or
laws of treaties of the United States." 28 U.S.C. § 2254(a). By
its terms, section 2254 "is not limited to challenges to an
underlying conviction or sentence but can be used by any state
prisoner who is in custody pursuant to a state court judgment and
who challenges that custody on constitutional grounds." See
Rossney v. Travis, No. 00 Civ. 4562 (JGK), 2003 WL 135692, at *3
(S.D.N.Y. Jan. 17, 2003). On the other hand, although Section 2241 may also be invoked by
prisoners "in custody in violation of the Constitution or laws or
treaties of the United States," 28 U.S.C. § 2241(c)(3), that
section has been used to challenge the execution of a federal
sentence, when the underlying conviction is not at issue.
Rossney, 2003 WL 135692, at * 4 (citing Carmona V. United
States Bureau of ...