Opinion
CIVIL ACTION NO. 04-545
April 14, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Waymart, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
McElwee presents four claims for review. In each he complains that his sentences were unlawfully aggregated by the Department of Corrections, such that he is now serving time on an expired sentence. In response, the Attorney General argues that the claims are unexhausted and, in any event, do not provide a basis for habeas corpus relief.
Although we agree that the claims are unexhausted, we find it is appropriate to address McElwee's claims. See 28 U.S.C. § 2254(b)(2) (the district court may deny a petition on its merits despite the petitioner's failure to exhaust his claims). It appears that McElwee is confusing the concept of consecutive and concurrent sentences. It is clear that when the Honorable Richard Lowe, Court of Common Pleas of Montgomery County, sentenced McElwee, he imposed consecutive sentences, meaning that the sentences were not to be served simultaneously. Black's Law Dictionary, 7th ed., at 1367. McElwee received a sentence of 1-7 years' imprisonment for arson and 2-5 years' for a burglary conviction. (N.T. 6/22/94, 33-35).
The proper state appeal for a claim involving sentence aggregation is through a mandamus action in the Commonwealth Court. Anderson v. Board of Probation and Parole, No. 03-4655, 2004 WL 286870 at *1 n. 1 (E.D. Pa. Feb. 12, 2004) (citing Jamieson v. Com., Pennsylvania Bd. of Probation and Parole, 495 A.2d 623, 625 (Pa.Cmwlth. 1985); Commonwealth v. ex rel. Lowry v. Pennsylvania Board of Parole, 202 A.2d 98, 99-100 (Pa. 1964)). Here, McElwee admits that he has never sought any state court review of his sentence aggregation claims.
The Department of Corrections properly aggregated these sentences pursuant to 42 Pa.C.S.A. § 9757. "In Gillespie v. Commonwealth, [ 106 Pa.Commw. 500, 527 A.2d 1061 (1987)], the Commonwealth Court held that [42 Pa.C.S.A.] § 9757 requires aggregation of the minimum and maximum sentences of all sentences imposed to be served consecutively even where they are imposed by different judges in different counties on different days." Commonwealth v. Harris, 1991 WL 1011094 (Pa.Com.Pl. Dec. 13, 1991). Based on Pennsylvania law, McElwee's two sentences, 1-7 years' and 2-5 years', were properly aggregated to a sentence of 3-12 years' imprisonment.
Moreover, the Third Circuit has held that the aggregation of the minimum and maximum sentences does not present a constitutional issue. "Construing the Act [providing for the aggregation of sentences] . . . we can discern no issue of constitutional dimension which is essential to Federal habeas corpus relief." United States ex rel. Monk v. Maroney, 378 F.2d 55 (3d Cir. 1967). Thus, McElwee's aggregation issue does not provide a basis for habeas corpus relief. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (habeas review is limited to constitutional issues).
To the extent McElwee claims that his Eighth Amendment rights prohibiting cruel and unusual punishment have been violated by incarceration beyond his maximum sentence, the claim is meritless. On June 22, 1994, McElwee received an aggregate sentence of 3-12 years' imprisonment. At this point, McElwee has yet to reach his original maximum date, let alone the adjusted maximum date which was caluclated after McElwee violated parole. His maximum date is now July 20, 2007. Therefore, McElwee's claim that he has been imprisoned beyond his maximum date is meritless.
McElwee was paroled in 1999, and spent a year, three months and eleven days on parole. Unfortunately, he violated his parole and was reincarcerated as a technical parole violator at the end of 2001.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 14th day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be denied. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this ___ day of ___, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED.
3. There is no basis for the issuance of a certificate of appealability.