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Kevin Paul Peno v. David Varano et al.*Fn1

January 31, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge


Before the court is a petition for writ of habeas corpus (doc. no. 1), filed by pro se petitioner Kevin Paul Peno, who is currently serving a sentence for criminal offenses committed in Pennsylvania. Peno has cited 28 U.S.C. § 2241 as authority for filing the petition. The petition (doc. no. 1) is identical to a petition that Peno filed in a federal district court in Pennsylvania. The instant petition is the fourth application for federal habeas relief that Peno has filed in connection with his Pennsylvania convictions. The first and third prior petitions shall be referred to herein as Peno I and Peno III.*fn2

The petition (doc. no. 1) is here for preliminary review to determine whether or not the claims raised therein are facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("§ 2254 Rules"); id. Rule 1(b) (authorizing court to apply § 2254 Rules to habeas corpus petitions filed pursuant to 28 U.S.C. § 2241).

Standard of Review

Pursuant to § 2254 Rule 4, a judge is required to promptly examine any petition for habeas relief, and if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition." Id. In undertaking this review, the court applies a standard analogous to that used in reviewing a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6). The court decides whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible and cognizable in a petition for federal habeas relief. See Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009) (standard of review applicable in determining if complaint states viable claims). The court may consider whether federal habeas review is barred by the petitioner's failure to exhaust state court remedies, a procedural default, or a statute of limitations defense apparent upon the face of the petition. See id.; see also Day v. McDonough, 547 U.S. 198, 209-10 (2006) (district courts are permitted, but not required, to dismiss complaint, sua sponte, based upon statute of limitations, if parties have received fair notice and an opportunity to present their positions); Oakes v. United States, 400 F.3d 92, 96 (1st Cir. 2005) (district court has discretion to raise issue of procedural default sua sponte (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997))).


I. Criminal Conviction and Sentence in Pennsylvania

In 1996 in Dauphin County, Pennsylvania, Peno was charged with firearms offenses, criminal conspiracy, and sex offenses involving two young children. The firearms charges proceeded to trial. A jury convicted Peno on the firearms charges, and, shortly thereafter, on April 17, 1998, Peno pleaded guilty to charges alleging sex offenses and a criminal conspiracy.

Peno's sentence for the convictions included 71/2 to 15 years in prison and several concurrent terms of probation, the longest of which was twenty years. Probation was set to begin when Peno became eligible for parole. The sentence conditioned parole eligibility on Peno completing treatment programs in prison. A docket entry for the change of plea hearing states that probation was concurrent "for this sentence only" and that the probation terms imposed could be rendered consecutive if Peno's parole or probation was revoked. Documents provided to Peno by the Pennsylvania Board of Probation and Parole ("Parole Board") in May 1998 stated that the maximum date for the 20-year probation term would be April 17, 2008, twenty years after he was sentenced.

Peno served the maximum term of his prison sentence without parole because, he asserts, the standards for parole eligibility changed over time. Peno's scheduled release date was November 13, 2011. On March 16, 2011, the Parole Board issued documents showing that Peno's 20-year term of probation would extend into 2031, twenty years beyond Peno's scheduled release date.

II. Post-Conviction Proceedings in State Court

While incarcerated, Peno filed a number of unsuccessful petitions for post-conviction relief in the Dauphin County Court of Common Pleas in Pennsylvania. In one of Peno's previously filed petitions in state court, Peno asserted: (1) that in March 2011, the Parole Board altered the terms of his plea agreement and his sentence, in violation of the Double Jeopardy Clause and the Due Process Clause, by extending the term of his probation; (2) that Peno was actually innocent; (3) that the prosecutor had misled the jury during Peno's firearms trial; and (4) that the prosecutor had improperly coached the two young victims during a preliminary hearing on Peno's sex offense charges.

In denying that petition on March 29, 2011, the state court found that Peno's original sentence had included a consecutive term of probation, not a concurrent term, and that Peno had not challenged the Parole Board's March 2011 actions in a state court with jurisdiction to review such actions. See Ex. B to Pet. (order denying petition for post-conviction relief, in Commonwealth v. Peno, Nos. 2996 CR 1996, 3397 CR 1996, slip op. at 2, 4 (Pa. Ct. Com. Pl., Dauphin Cnty., Mar. 29, 2011)). The state court also found that Peno's petitions had been vexatious, and that if Peno were to file an appeal, the state appellate court should consider whether to sanction Peno. Peno did not appeal the March 2011 order denying his state petition for post-conviction relief.

III. Federal Habeas Petitions in New Hampshire and Pennsylvania

Currently residing in New Hampshire and, the court presumes, still subject to conditions of probation, Peno filed the instant federal habeas petition in May 2011 while he was incarcerated pursuant to his prison sentence. Peno has relied upon 28 U.S.C. § 2241, and not 28 U.S.C. § 2254, in applying for a writ of habeas corpus in this court.

The instant petition is identical to the third federal habeas petition that Peno filed in federal court in Pennsylvania, Peno III, which was pending when Peno chose to file the same petition (doc. no. 1) here. On November 9, 2011, the district court in Pennsylvania issued an order adopting the magistrate judge's report and recommendation, which dismissed the petition. See Peno III (order dismissing petition). The district court specifically rejected Peno's objection that, since a § 2254 petition challenging Peno's underlying conviction would be time-barred, Peno should be allowed to proceed under § 2241. See id., slip op. at 4-5 & n.3. The court noted that Peno had "flatly refused" to comply with an order ...

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