Opinion
Civil Action No. 15 - 1088
07-26-2018
ERIC X. RAMBERT, Petitioner, v. VINCENT T. MOONEY and PA STATE ATTORNEY GENERAL, Respondents.
Cc: Eric X. Rambert AM-9223 SCI Fayette P.O. Box 9999 LaBelle, PA 15450 Counsel for Respondents (Via CM/ECF electronic mail)
District Judge David S. Cercone
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) filed by Eric X. Rambert be dismissed for lack of jurisdiction and that no certificate of appealability issue.
II. REPORT
Petitioner, Eric X. Rambert ("Petitioner"), an inmate confined at the State Correctional Institution at Fayette, has filed a Petition for Writ of Habeas Corpus (ECF No. 1) claiming that the Pennsylvania Department of Corrections ("DOC") improperly aggregated 1987 sentences with unrelated 1983 sentences. He contends that the Board of Probation and Parole ("Parole Board") should have constructively paroled him upon expiration of his minimum sentence for the 1983 offenses in 1993, at that time beginning a separate sentence for his 1987 offenses, the result of which, he argues, would be a maximum date of 2018 rather than 2033 as the DOC has calculated. This is not the first time Petitioner has challenged the aggregation of his sentences in the federal courts.
On November 21, 1983, Petitioner pled guilty to rape and burglary in the Court of Common Pleas of Philadelphia County. He was sentenced by Judge McCrudden to a ten (10) to twenty-five (25) year term of imprisonment, effective June 2, 1983. On November 10, 1987, while incarcerated for the prior crimes, Petitioner was found guilty by Judge Dauer of the Court of Common Pleas of Allegheny County of assaulting another inmate, rioting, and criminal conspiracy. Judge Dauer sentenced Petitioner to a six (6) to twenty-five (25) year term of imprisonment, to run consecutively with Petitioner's prior sentence. Accordingly, the Department of Corrections aggregated Petitioner's sentences, resulting in a June 2, 1999 minimum date and a June 2, 2033 maximum date. On April 19, 2016, the Pennsylvania Board of Probation and Parole reviewed, and denied, Petitioner's application for parole and informed him that he is "to serve his unexpired maximum sentence 06/02/2033, or to be reviewed earlier, if recommended by department of correction/county prison staff due to appropriate adjustment and program completion." Prior to this, Petitioner was also denied parole on April 2, 2013; March 24, 2014; and April 19, 2016.
Petitioner made a similar challenge to his sentence calculation in a Petition for Writ of Habeas Corpus that he filed in 2011 in the Middle District of Pennsylvania, during which time he was incarcerated in the State Correctional Institution, Coal Township, Pennsylvania. See Rambert v. Shannon, No. 3:CV-11-1370, ECF No. 1 (M.D. Pa. June 3, 2011). In his Memorandum, Judge William J. Nealson addressed Petitioner's claim as follows:
Under Pennsylvania law, the aggregation of consecutive sentences is automatic and mandatory. Anderson v. Board of Probation and Parole, No. 03-4655, 2004 WL 286870, *1 (E.D. Pa. Feb. 12, 2004); Commonwealth ex rel. Smith v. Department of Corrections, 829 A.2d 788 (Pa. Cmwlth. 2003); Gillespie v. Cmmw. Dep't of Corr., 527 A.2d 1061 (Pa. Commw. Ct. 1987).
Pursuant to 42 Pa. Cons. Ann. § 9757, entitled "Consecutive Sentences of Total Confinement for Multiple Offenses:"
Whenever the court determines that a sentence should be served consecutively to one being then imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which the sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed.
(emphasis added). "The term 'shall' rather than 'may' imports the mandatory, rather than discretionary, nature of the statute." Gillespie, 527 A.2d at 1065. Where, as in the instant case, a sentencing judge specifies that the sentence imposed shall run consecutively to a defendant's preexisting sentence, but fails to specify the total aggregated minimum sentence as required by 42 Pa. Con. Stat. Ann. § 9757, the aggregation of those consecutive sentences still occurs "by necessary implication[.]" Id. Therefore, although Petitioner's sentencing judge failed to order that Petitioner's second sentence be aggregated with Petitioner's first sentence, that aggregation still occurred under Pennsylvania law.Rambert v. Shannon, No. 3:CV-11-1370, 2012 WL 3137893, at *2-3 (M.D. Pa. Aug. 1, 2012).
Pennsylvania courts have interpreted section 9757 to require "the aggregation and preservation of the maximum terms of the consecutive sentences . . . [because, i]n so doing, both the minimum and maximum terms of each sentence are preserved." Gillespie, 527 A.2d at 1065 (citations omitted). Petitioner's first sentence was ten to twenty-five years. Petitioner's second sentence, ordered to run consecutively with his first sentence, was six to twenty-five years. By operation of section 9757, Petitioner's aggregated sentence was sixteen to fifty years, giving him a maximum release date in 2033. This sixteen to fifty year sentence became effective when Petitioner received his second sentence in 1987. Therefore, Petitioner's argument that the DOC "did not have subject matter jurisdiction to change Petitioner's sentence", is without merit because the Department merely corrected their records to accurately reflect Petitioner's lawfully imposed total aggregated sentence.
Additionally, Petitioner made several challenges related to the aggregation of his sentences in a Petition for Writ of Habeas Corpus that he filed in this Court on February 15, 2017. See Rambert v. Overmyer, No. 1:17-cv-00042, ECF No. 1-1 (W.D. Pa. Feb. 15, 2017). While that Petition was filed after the Petition at issue in this case, it was denied by Memorandum Order dated March 14, 2018, and the Court of Appeals for the Third Circuit denied Petitioner's request for a certificate of appealability on July 20, 2018. Id. at ECF Nos. 21, 24.
Because the instant Petition is at least the second one that Petitioner has filed in federal court in which he challenges the aggregation of his sentences, it is subject to the authorization requirements set out at 28 U.S.C. § 2244(b). AEDPA mandates that before a state prisoner may file a second or successive habeas corpus petition in which he challenges a judgment of sentence that he previously challenged in a federal habeas action, he must first obtain an order from the court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Once a petitioner moves for authorization to file a second or successive petition, a three-judge panel of the court of appeals must decide within thirty days whether there is a prima facie showing that the application satisfies § 2244's substantive requirements, which are set forth in § 2244(b)(2). See U.S.C. § 2244(b)(3)(C). AEDPA's allocation of "gatekeeping" responsibilities to the courts of appeals has divested district courts of jurisdiction over habeas petitions that are second or successive filings. See, e.g., Burton v. Stewart, 549 U.S. 147 (2007).
Because Petitioner did not obtain permission from the Third Circuit Court of Appeals to file the instant Petition, the Court should dismiss it for lack of jurisdiction. See 28 U.S.C. § 2244(b)(1).
Nevertheless, it does not appear that Petitioner's claims relating to the aggregation of his sentences present a constitutional issue. The Third Circuit Court of Appeals 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) (involving predecessor statute). Thus, Petitioner's 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). Alternatively, his claims appear to be barred by the one-year statute of limitations, which is codified at 28 U.S.C. § 2244(d). Petitioner filed a petition for writ of mandamus and/or extraordinary relief in the Pennsylvania Supreme Court, No. 150 EM 2013, on September 30, 2013. See Anderson v. Board of Probation & Parole, 2004 WL 286870, n.1 (E.D. Pa. Feb. 12, 2004) (an action in mandamus in the Commonwealth Court of Pennsylvania is the proper method of challenging sentence aggregation). Even though Petitioner filed his mandamus action with the Pennsylvania Supreme Court rather than the Commonwealth Court, the court granted Petitioner's application for leave to file original process but denied the petition on November 20, 2013. Petitioner had one year from that day, or until November 20, 2014, to file a federal habeas petition. See 28 U.S.C. § 2244(d). However, he did not file his Petition until July 4, 2015.
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) filed by Eric X. Rambert be dismissed for lack of jurisdiction and that no certificate of appealability issue.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Petitioner shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Petitioner's failure to file timely objections will constitute a waiver of his appellate rights.
Dated: July 26, 2018.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Eric X. Rambert
AM-9223
SCI Fayette
P.O. Box 9999
LaBelle, PA 15450
Counsel for Respondents
(Via CM/ECF electronic mail)