Opinion
CIVIL ACTION NO. 02-9373
December 29, 2003
REPORT AND RECOMMENDATION
Presently before this court is a pro se Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. Hector Ayala ("Petitioner") is currently incarcerated at the State Correctional Institution at Smithfield, Pennsylvania. Petitioner challenges the constitutionality of a recent decision of the Pennsylvania Board of Probation and Parole ("the Board"). The Honorable James Knoll Gardner referred this matter to the undersigned for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, it is recommended that the petition be denied and dismissed without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts and procedural history were gleaned from Petitioner's application for writ of habeas corpus and Traverse, and Respondent's answer, with exhibits.
In 1987 and 1988, Petitioner was sentenced in Philadelphia County to an aggregate term of two-and-a-half (2 ½) to nine (9) years for possession of an instrument of a crime, carrying a firearm on a public street, reckless endangerment of another, theft, receiving stolen property, and various drug offenses. See Dept. of Corrections Sentence Status Summary, App. p. 1; see also Initial Sentence Status Report, App. p. 4; Ayala v. Pennsylvania Bd. of Prob. and Parole, No. 1395 C.D. 2001 at 1 (Pa.Commw. Nov. 16, 2001). Petitioner's minimum sentence expiration date was September 22, 1990 and his maximum incarceration date was March 22, 1997. See Ayala, No. 1395 at 1-2.
After serving the minimum two-and-a-half (2 ½) years in prison, on September 22, 1990, Petitioner was released on parole. See Respondent's Answer to Petitioner's Habeas Application ("Resp.") at 2. Effective January 3, 1991, Petitioner was recommitted for technical violations of parole. See Respondent's Appendix to the Answer ("Resp. App.") at 7. After serving another five months in prison, Petitioner was released on reparole. See Resp. App. at 10.
Until this point, Petitioner had served two years and eleven months in prison. He had six years and one month remaining his 1988 sentence.
On September 27, 1991, Petitioner was arrested on homicide charges; and the Board issued a detainer, pending disposition of these charges. See Ayala, No. 1395 at 2. On May 7, 1993, Petitioner was convicted in Philadelphia County of Murder (3rd degree) and possession of an instrument of a crime. See Resp. App. at 20. On July 24, 1994, consequently, he was arrested on federal charges of committing a crime while under court supervision. See Ayala, No. 1395 at 2. On April 10, 1996, Petitioner was sentenced to a state term of ten (10) to twenty (20) years, to be served concurrent to a federal sentence and in a federal facility. See id; see also Resp. App. at 21.
Next, on June 18, 1997, Petitioner was convicted and sentenced to serve twenty (20) years on federal charges of conspiracy to distribute cocaine, continuing criminal enterprise, and carrying or using a firearm during drug trafficking. See Ayala, No. 1395 at 2; see also Resp. App. at 29. On September 17, 1997, Petitioner was recommitted as a convicted parole violator and as a technical parole violator. See Ayala, No. 1395 at 2. The Board revoked parole and directed that Petitioner serve the expired balance of his 1998 sentence "when available." See Resp. App. at 16, 17.
On March 6, 2001, the federal court resentenced Petitioner to one hundred and thirty (130) months in federal prison, but credited Petition for all the time he had spent in state custody (September 8, 1991 through March 6, 2001). See Resp. App. at 38, 39, 47. When Petitioner was released from federal custody, he was returned to the state system and the Board recalculated the maximum expiration date of Petitioner's sentence to be April 6, 2007. See Ayala, No. 1395 at 2. On April 2, 2001, Petitioner filed, but was denied, a pro se request for administrative relief. See id.
The Board held that Petitioner still had six (6) years and one month to serve on his 1988 sentence, or until April 6, 2007, because under 61 P.S. § 331.21a(a) service of back time cannot run concurrent with service of the prison sentence for the crime that constitutes the parole violation, and because the convicted violator receives no credit for time on parole. See Resp. App. at 18.
Petitioner appealed the ultimate revocation of his parole, challenging the Boards's computation of his unexpired sentence. See Resp. App. at 52. On January 25, 2002, the Commonwealth Court of Pennsylvania affirmed the Board's computation and decision. See id. Petitioner did not seek review of this decision. Rather, in July 2002, he filed a Petition for Writ of Mandamus and/or Extraordinary Relief in the Pennsylvania Supreme Court asserting errors in calculating the remaining time on his 1988 sentence. See id. The Pennsylvania Supreme Court denied the petition. See Ayala v. Commonwealth of Pa., Bd. of Prob. and Parole, No. 175 MM 2002 (Pa. Nov. 19, 2002) (order).
Thereafter, on December 23, 2002, Petitioner filed the instant petition for writ of habeas corpus itemizing four claims, that essentially allege unfair denial of credit for time spent in custody. See Petitioner's Federal Habeas Application ("Pet.") at 9-10; see also Petitioner's Traverse to the Answer ("Pet. Trav."). Respondent counters that this petition should be dismissed for failure to exhaust. See Resp. at 5. This court, however, recommends denial of Petitioner's claims, on the merits.
II. DISCUSSION
A. ExhaustionA petition for habeas corpus is a final effort to obtain relief when other legal remedies are foreclosed. Therefore, a district court may consider and grant habeas corpus relief only if Petitioner meets his burden of proving that he has either exhausted all state remedies available to him with respect to each discrete allegation or is excused from doing so. 28 U.S.C. § 2254(b) ; Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulsen v. Beyer, 987 F.2d 984, 987 (3rd Cir. 1993), aff'd, 30 F.3d 1488 (3rd Cir. 1994) (citation omitted). A claim is exhausted if it has been "fairly presented" once to the state's trial court, intermediate appellate court, and highest court. 28 U.S.C. § 2254(b); Evans v. Court of Common Pleas, DE County, Pa., 959 F.2d 1227, 1230-31 (3rd Cir. 1992) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). The fair presentation requirement is met when the claim presented in the state court is the "substantial equivalent" of the claim asserted in the petitioner's federal habeas petition. Picard, 404 U.S. at 278.See Lesko v. Owens, 881 F.2d 44, 50 (3rd Cir. 1989) (citing Picard), cert. denied, 110 S.Ct. 759 (1990); Bisaccia v. Atty. Gen. of New Jersey, 623 F.2d 307, 310 (3rd Cir. 1980) (quoting Picard), cert. denied, 101 S.Ct. 622 (1980). For exhaustion purposes, it is not necessary that the state court rule on the merits of the claim(s) presented to it. Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3rd Cir. 1983); Gonce v. Redman, 780 F.2d 333, 336 (3rd Cir. 1985).
The exhaustion requirement of 28 U.S.C. § 2254 provides:
(b)(1) An application for a Writ of Habeas Corpus on behalf of a person in custody pursuant to the judgment of a State Court shall not be granted unless it appears that —
(A) the application has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of the section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The rule favoring exhaustion applies to challenges of parole determinations. The Third Circuit Court of Appeals has held, that "[s]tate prisoners alleging a constitutional violation and improper incarceration must present their arguments to the state courts before they will be addressed by the federal courts." 28 U.S.C. § 2254(b); see also Burkett v. Love, 89 F.3d 135, 137 (3rd Cir. 1996).
Clarification is highly desirable and counsels in favor of exhaustion of state remedies rather than resolution on the merits in the first instance by the district court. Failure to require resort to the state courts in these circumstances would not be consistent with a sound exercise of discretion.Burkett, 89 F.3d at 142. Notwithstanding the Commonwealth Court's position in Weaver v. Pa. Bd. of Prob. and Parole, 688 A.2d 766 (Pa.Commw. 1997) ("both the statutory and decisional law of Pennsylvania precludes an appeal from the Board's grant or denial or parole.") and Eldridge v. Pa. Bd. of Prob. and Parole, 688 A.2d 273 (Pa.Commw. 1997), that a petitioner could not obtain review of a parole denial decision via a petition for review, Commonwealth Court, in fact, does review the merits of petitions wherein a petitioner allege aparole denial violates his federal constitutional rights. See Myers v. Ridge, 712 A.2d 791, 794 (Pa.Commw. 1998) ("[d]ecisions to grant or deny parole are generally not appealable except to the extent that a constitutional or statutory violation has occurred") (emphasis supplied).
The Pennsylvania Supreme Court recently revisited the issue of parole review in Rogers v. Pa. Bd. of Prob. and Parole, 724 A.2d 319 (Pa. 1999). The state court reiterated that decisions not to release an applicant on parole are not "adjudications" under the Administrative Agency Law, 2 Pa.C.S. § 101, et seq., and do not implicate any protected liberty interest under the Fourteenth Amendment's Due Process Clause, and clarified that mandamus remains the appropriate avenue for review in a state forum whenever a petitioner challenges the constitutionality of the Board's decision:
While appellants are not entitled to appellate review of a Parole Board decision, they may be entitled to pursue allegations of constitutional violations against the Parole Board through a Writ of Mandamus, an action under 42 U.S.C. § 1983. Mandamus is an extraordinary remedy which is available to compel the Parole Board to conduct a hearing or to apply the correct law . . . Section 1983 provides a remedy against any person who, under the color of state law, deprives another of rights protected by the Constitution.Rogers, 724 A.2d at 323, n. 5; see also Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001) (holding that "[w]here . . . discretionary actions and criteria are not being contested, an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause.") Thus, under (or following) Burkett, "this court is obligated to conclude that [petitioner] has available state remedies . . . and that he must exhaust those remedies before bringing a habeas action to this court." Cohen v. Horn, No. Civ. A. 97-7175, 1998 WL 834101 at *2 (E.D. Pa. Dec. 2, 1998).
The government asserts that Petitioner has not properly exhausted his instant parole allegations. The record establishes contrary facts. Petitioner presented his claims to both Commonwealth Court and, in a mandamus action, to the Pennsylvania Supreme Court. See Petitioner's Petition for Writ of Mandamus Review, June 15, 2001. Although both courts dismissed Petitioner's filings without granting relief, the presentation process exhausted the issues for federal purposes. Therefore, his claims will now be considered on the merits. See Rose, 455 U.S. at 519 (a district court may consider and grant habeas corpus relief only if Petitioner meets his burden of proving that he has either exhausted all state remedies available to him with respect to each discrete allegation.")
B. Merits
Petitioner alleges that the Board violated his due process rights by erroneously extending his maximum expiration date to April 6, 2007, thus, denying him credit for time spent in custody. See Pet. at 9-10. Specifically, Petitioner attacks the Board's determination of September 17, 1997, that he must serve his federal sentence first, "his backtime" second, and the new state sentence last. Petitioner contends that all of his convictions should be served concurrently. See Pet. at 9-10.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this federal habeas court may overturn the state court's resolution of the merits of this sentencing issue only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S. 362 (2000), discussed the analysis required by § 2254(d)(1):
[Under the "contrary to" clause] a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1498. The Third Circuit Court, consistent with the Williams v. Taylor interpretation, has set forth in Marino v. Superintendent, SCI-Albion, 171 F.3d 877 (3rd Cir. 1999), cert. denied 528 U.S. 824 (1999) a two tier approach to determining § 2254(d)(1) issues:
First, the federal habeas court must determine whether the state court decision was "contrary to" Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that "Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." O'Brien [v. Dubois], 145 F.3d [16], 24-25 [(1st Cir. 1998]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an "unreasonable application" of Supreme Court precedent; that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified. If so, then the petition should be granted.Id. at 891. The phrase "clearly established Federal law," as the term is used in Section 2254(d)(1), is restricted "to holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time the relevant state-court decision." Williams, 529 U.S. at 365. Under the "reasonable application" clause,
a federal habeas court may not grant relief simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. The AEDPA further provides for relief if an adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). State factual determinations, presumptively correct, may be rebutted only upon presentation of clear and convincing evidence. See 28 U.S.C. § 2254(c)(1).
The Pennsylvania Commonwealth Court considered Petitioner's arguments:
Initially, we note that in both Frankhouser v. Pennsylvania Board of Probation and Parole, 608 A.2d 595 (Pa.Cmwlth. 1992), and Bellochio v. Pennsylvania Board of Probation and Parole, 559 A.2d 1024 (Pa.Cmwlth. 1989), this Court reaffirmed that a federal sentence takes precedence over back time. Moreover, in Frankhouser, the Court went on to clarify that if Frankhouser "is serving his federal sentence in a non-state institution," as in [Petitioner's] case, "then his federal sentence may not be running concurrently with his state sentence and the federal sentence must be served before his backtime." Id., 608 A.2d at 597.
Further, [Petitioner's] contention that the sentencing courts intended the state and federal sentences to be concurrent rather than consecutive is of little weight. In Vance v. Pennsylvania Board of Probation and Parole, 741 A.2d 838, 840 (Pa.Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 695, 760 A.2d 859 (2000), this Court clearly stated:
Section 21.1(a) of the Act commonly known as the Parole Act, Act of August 6, 1941, P.L. 861, added by Act of August 24, 1951, P.L. 1401, as amended, 61 P.s. § 331.21a(a), mandates that sentences for crimes committed on parole must be served consecutively with time remaining on original sentences and thus prohibits courts of this Commonwealth and the Board from imposing concurrent sentencing. See also Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634 (Pa.Cmwlth. 1999). Additionally, the Board may not impose a parole violation sentence to run concurrently with a new sentence for an offense committed while on parole.
The above guidelines apply to the present situation albeit that common pleas court may have directed that [Petitioner's] state sentence run concurrently with his federal sentence and that the state sentence be served in a federal facility. Additionally, we note that once [Petitioner's] federal sentence was reduced to time served, he was properly returned to a state correctional facility to complete his original state sentence before beginning to serve his new state sentence.Ayala, No. 1395 at 4-5.
The calculation of Petitioner's sentence does not offend any federal law. First, individuals have no constitutionally protected liberty interest in a claim to parole cognizable under due process. See Smith v. Larkins, 1999 WL 959551 (E.D.Pa Oct. 20, 1999). In essence, the mere possibility of parole, creates no constitutional rights for prisoners. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1 (1979). Furthermore, parole is not a protected liberty interest under Pennsylvania state law. See Rogers, 724 A.2d at 323; Burkett v. Love, 89 F.3d 135, 139 ((3rd Cir. 1996).
Second, court's may appropriately exercise discretion in determining whether sentences will be concurrent or consecutive. See U.S. v. Gonzales, 520 U.S. 1, 6-7 (stating a district court has authority to decide whether federal prison terms should run concurrently with or consecutively to other prison sentences (vesting power in district court to run most prison terms either concurrently or consecutively)); see also United States Sentencing Commission, Guidelines Manual § 5G1.3 (Nov. 1995) (USSG) (guiding court's discretion under § 3584(a) (emphasis added). When a parolee is convicted of a new crime, the remainder of the sentence imposed for the original crime must be served before the commencement of any sentence imposed on the second crime. See Commonwealth v. Walls, 391 A.2d 1064 (Pa. 1978) (emphasis added).
In Petitioner's case, the Superior Court concluded that, since a consecutive sentence is neither statutorily or judicially mandated in violation of probation cases, it is within the discretion of the trial court to determine if a concurrent or consecutive sentence should be imposed in such instances. See Walls, 391 A.2d at 1064 (emphasis added); see also Vance, 741 A.2d at 840 (stating that sentences for crimes committed on parole must be served consecutively with time remaining on the original sentence and thus prohibits courts of this Commonwealth and the Board from imposing concurrent sentences). Since Pennsylvania's laws, including the Parole Act, clearly do not require concurrent subsequent sentences, Petitioner was not entitled to the relief he seeks. Accordingly, his constitutional rights have not been violated and imposition of a consecutive sentence is neither contrary to or an unreasonable application of clearly established federal law.
C. Conclusion
Petitioner's constitutional claim, though exhausted, lacks merit and should be denied. Moreover, the Board's decisions were not "contrary to, and did not involve an unreasonable application of clearly established Federal law," as determined by this Circuit and the Supreme Court of the United States. Accordingly, this petition must be denied and dismissed, in its entirety, pursuant to the following:
RECOMMENDATION
AND NOW, this 29th day of December, 2003, for the reasons contained in the foregoing report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED and DISMISSED without an evidentiary hearing. Petitioner has failed to make a showing of a denial of a constitutional right. Therefore, a certificate of appealability should not be issued.
ORDER
AND NOW, this ___ day of ___, 2003, upon consideration of the Petition for Writ of Habeas Corpus and Traverse, the Commonwealth's Answer, inclusive of all exhibits thereto, and the record herein, and after review of the Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The Petition for Writ of Habeas Corpus is DENIED and DISMISSED without an evidentiary hearing;
3. Petitioner has failed to demonstrate denial of a constitutional right, thus, a certificate of appealability is DENIED.
IT IS SO ORDERED.