The opinion of the court was delivered by: Honorable Joseph E. Irenas
IRENAS , Senior District Judge:
Presently before the Court is Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2254. Petitioner asserts that the New Jersey State Parole Board miscalculated by 70 days the prison time he must serve for violating his parole. For the reasons set forth below, the application will be denied.
Petitioner Gaines was originally sentenced in New Jersey state court to a prison term of 8 years on two counts of robbery and conspiracy. He served at least the mandatory minimum term of his 8-year sentence (6 years, 9 months, and 18 days) and, on September 26, 2008, was released on parole.
On September 1, 2010, Gaines failed to report to his parole
officer for the purpose of giving a urine sample. *fn1
A parole warrant was issued on that day. A second
warrant, based on the original parole warrant, was issued by the
Fugitive Unit of the State Parole Board on November 10, 2010 (70 days
after the first warrant was issued). On November 23, 2010, Gaines was
arrested without incident.
At the parole violation hearing held approximately a month later, the hearing officer recommended revocation of Gaines' parole. The State Parole Board adopted the recommendation shortly thereafter, and ordered Gaines to serve a parole eligibility term of 12 months. *fn2 Thus Gaines has remained in custody since his arrest on November 23, 2010. The Department of Corrections' records indicate that Gaines' present parole eligibility date is November 22, 2011, with a maximum release date of December 18, 2011.
Gaines appealed the order of the State Parole Board. While the New Jersey Appellate Division denied his "motion for acceleration" of the appeal, it granted his motion to proceed as an indigent and his appeal remains pending.
Section 2254 provides, in pertinent part, that: a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
A habeas corpus petition is the proper mechanism for a
prisoner to challenge the "fact or duration" of his confinement,
Preiser v. Rodriguez , 411 U.S. 475, 498-99
(1973); see also Wilkinson v. Dotson , 125 S.Ct.
1242 (2005). Additionally, where a prisoner seeks a "quantum change"
in the level of custody, for example, where a prisoner claims to be
entitled to probation or bond or parole, habeas is the appropriate
form of action. See, e.g., Graham v. Broglin , 922
F.2d 379 (7th Cir. 1991) and cases
cited therein. *fn3
It is the circumstance of two warrants being issued, and the 70 days that elapsed between their issuance, that gives rise to Gaines' present application. If the first warrant was valid, then the parole board's calculation of his maximum release date for the parole violation is correct; but if the first warrant was invalid-- Gaines asserts that it was cancelled and therefore invalid-- then, Gaines ...