Opinion
Civil No. 3:05-CV-0316.
May 23, 2005
REPORT AND RECOMMENDATION
On February 14, 2005, the petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner is challenging the denial of parole by the Pennsylvania Board of Probation and Parole. It is recommended that the petition be denied and that the case file be closed.
I. Background and Procedural History.
The petitioner was convicted in the Court of Common Pleas of Lackawanna County of robbery. Doc. 11, Exhibit A — Castor Decl. at ¶ 24. On July 13, 1984, he was sentenced to ten to twenty years imprisonment to be served consecutive to another sentence. Doc. 11, Exhibit A — Castor Decl. at ¶ 24 Doc. 11, Exhibit B. The petitioner's minimum release date was October 16, 1999 and his maximum release date was October 16, 2009. Doc. 11, Exhibit B.
By a Notice of Decision dated February 25, 2000, the Pennsylvania Board of Probation and Parole (the Board) ordered that the petitioner be paroled to a community corrections center. Doc. 11, Exhibit E. The petitioner was released on parole on June 5, 2000. Doc. 11, Exhibit F.
By a Notice of Decision dated September 20, 2000, the Board declared the petitioner delinquent as of September 16, 2000. Doc. 11, Exhibit G. The Board issued a warrant for the petitioner's arrest and the petitioner was subsequently arrested in New York on January 7, 2002. Doc. 11, Exhibit A — Castor Decl. at ¶ 30.
The petitioner was charged with violating the conditions of his parole by traveling outside his parole district without permission and by changing his residence without permission. Doc. 11, Exhibit. H. The petitioner admitted those violations, and by a Notice of Decision dated May 1, 2002, the Board revoked the petitioner's parole. Doc. 11, Exhibit I. The Board ordered that the petitioner be recommitted to a state correctional institution as a technical parole violator to serve 18 months backtime. Id. The Board denied the petitioner credit toward his sentence for the time he was delinquent and recalculated the petitioner's maximum sentence date as February 7, 2011. Doc. 11, Exhibit A — Castor Decl. at ¶ 33 Doc. 11, Exhibit I.
The petitioner filed an administrative appeal of the revocation of his parole with the Board. Doc. 11, Exhibit J. On June 19, 2002, the Board denied that appeal. Id. There is no documentation in the Board's file regarding the petitioner to indicate that the petitioner appealed the revocation of his parole to the Pennsylvania courts. Doc. 11, Exhibit A — Castor Decl. at ¶ 34.
The petitioner applied for and was denied reparole on two occasions.
In July of 2003, the Board denied the petitioner parole. Doc. 11, Exhibit K. The Notice issued by the Board provided:
Following an interview with you and a review of your file, and having considered all matters required pursuant to the Parole Act of 1941, as amended, 61 P.S. § 331.1 ET SEQ., the Board of Probation and Parole, in the exercise of its discretion, has determined at this time that: Your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time.Id. The Notice listed the reasons for the decision as including the petitioner's prior history of supervision failure and the petitioner's interview with the hearing examiner and/or board member. Id. The Notice also indicated that the petitioner will be reviewed again in or after July of 2004 and that at the petitioner's next parole review the Board will consider whether the petitioner maintained a favorable recommendation for parole from the Department of Corrections and whether the petitioner maintained a clear conduct record and completed the Department of Corrections prescriptive programs. Id. The Notice also indicated that an approved home plan is to be available at the time of the next review. Id.
The petitioner filed an administrative appeal of the July 2003 denial of reparole with the Board. Doc. 11, Exhibit A — Castor Decl. at ¶ 36. However, there is no documentation in the Board's file regarding the petitioner to indicate that the petitioner appealed the Board's denial of parole to the Pennsylvania courts. Id.
On August 26, 2004, the Board again denied the petitioner parole. Doc. 11, Exhibit L. The Notice issued by the Board again provided that:
Following an interview with you and a review of your file, and having considered all matters required pursuant to the Parole Act of 1941, as amended, 61 P.S. § 331.1 ET SEQ., the Board of Probation and Parole, in the exercise of its discretion, has determined at this time that: Your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time.Id. The Notice listed the reasons for the decision as including the petitioner's lack of remorse for the offense committed; the petitioner's prior history of supervision failure; reports, evaluations and assessments concerning the petitioner's physical, mental and behavior condition and history; and the petitioner's interview with the hearing examiner and/or board member. Id. The Notice also indicated that the petitioner will be reviewed again in or after August of 2005 and that at the petitioner's next parole review the Board will review the petitioner's file and consider whether the petitioner maintained a favorable recommendation for parole from the Department of Corrections and whether the petitioner maintained a clear conduct record and completed the Department of Corrections prescriptive programs. Id. The Notice also indicated that the petitioner's efforts to secure an approved home plan will be submitted to the Board at the time of the next review and that the petitioner's written version of parole violations is to be available at the time of that review. Id.
The petitioner filed an administrative appeal of the August 2004 denial of reparole with the Board. Doc. 11, Exhibit A — Castor Decl. at ¶ 38. However, there is no documentation in the Board's file regarding the petitioner to indicate that the petitioner appealed the Board's denial of parole to the Pennsylvania courts. Id.
The petitioner filed the instant petition for a writ of habeas corpus on February 14, 2005. By an Order dated March 9, 2005, the respondents were ordered to respond to the petition on or before March 30, 2005. The Order of March 9, 2005 also provided that the petitioner may file a reply to the response within ten days of its filing.
After receiving an extension of time, the respondent filed a response to the petition on April 18, 2005. The petitioner has not filed a reply.
It is rather difficult to determine what exactly the petitioner is claiming in this case. We construe the petition in this case as raising the following claims: 1) that the Board violated the Ex Post Facto Clause by applying the 1996 version of 61 P.S. § 331.1 in considering his applications for parole; 2) the that Board's denial of parole was arbitrary and capricious; 3) that the Board violated 61 P.S. § 331.4; 4) that in denying parole the Board violated presumptive ranges; and 5) that the trial judge failed to follow Pennsylvania Sentencing Guidelines in sentencing the petitioner to 10 to 20 years on his robbery conviction.
The respondents construed the petition as raising only two claims: 1) that the Board violated the Ex Post Facto Clause in denying the petitioner reparole; and 2) that the Board exceeded the presumptive ranges for backtime when it recommitted him for parole violations. The respondents contend that the petitioner has not exhausted state remedies as to either of those claims, that the claim regarding the revocation of his parole is time barred, and that both of the petitioner's claims are without merit.
We will consider each of the claims we identified in the petition.
II. Ex Post Facto Claim regarding application of 61 P.S. § 331.1.
In December 1996 the Pennsylvania legislature modified the law governing parole in Pennsylvania, including 61 P.S. § 331.1. The petitioner claims that the Board violated the Ex Post Facto Clause by applying the 1996 version of 61 P.S. § 331.1 in considering his applications for parole.
The respondents contend that the petitioner failed to exhaust state remedies with regard to his Ex Post Facto Claim. The petitioner does not dispute that he did not exhaust state remedies with regard to his Ex Post Facto Claim. He argues instead that exhaustion should be excused in this case because it would be futile to seek relief in the Pennsylvania Courts. Although the respondents contend that exhaustion should not be excused in this case as futile, the respondents also, in the alternative, address the merits of the petitioner's Ex Post Facto claim. Because we conclude that the petitioner's Ex Post Facto claim is without merit, we will not address the exhaustion question. See 28 U.S.C. § 2254 (b) (2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
The United States Constitution forbids ex post facto laws. U.S. Const. Art. I, § 9. The Ex Post Facto Clause is aimed at laws that retroactively alter the definition of a crime or that increase the punishment for criminal acts. California Dept. of Corrections v. Morales, 514 U.S. 499, 504 (1995). Two critical elements must be present for a law to be found to be ex post facto: first, the law must be retrospective, applying to events prior to its enactment; and second, it must disadvantage the offender affected by it. Lyons v. Mendez, 303 F.3d 285, 287-288 (3d Cir. 2002). Retroactive changes in laws governing parole of prisoners may in some instances violate the prohibition against ex post facto laws. Garner v. Jones, 529 U.S. 244, 250 (2000). However, "the Ex Post Facto Clause should not be employed for `the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures.'" Id. at 252 (quoting Morales, supra, 514 U.S. at 508). The Ex Post Facto Clause does not forbid every legislative change that has any conceivable risk of affecting a prisoner's punishment. Morales, supra, 514 U.S. at 508. Rather, the controlling inquiry is whether the change creates "a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. at 509. The prisoner "must show that as applied to his own sentence the law created a significant risk of increasing his punishment." Garner, supra, 529 U.S. at 255.
Prior to 1996, 61 P.S. § 331.1 provided:
The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment, and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.
After the 1996 amendment, Section 331.1 provides:
The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison. In providing these benefits to the criminal justice system, the board shall first and foremost seek to protect the safety of the public. In addition to this goal, the board shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control and treatment of paroled offenders.
In Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003), the Third Circuit held that the Board had violated the Ex Post Facto Clause by retroactively applying the 1996 law to deny Mickens-Thomas parole. The Board denied parole to Mickens-Thomas on three occasions after his life sentence for murder had been commuted by the governor. Id. at 381-383. After examining the Board's pronouncements of policy and its public statements, the court determined that prior to 1996 public safety had been just one of many factors considered by the Board but that after the 1996 amendment the Board shifted its stance and "considerations of public safety became the dominant concern of the Board." Id. at 386. Of the 266 prisoners whose life sentences had been commuted in Pennsylvania, all, except Mickens-Thomas, were granted parole on their first or second parole applications. Id. at 385. Mickens-Thomas' application was distinguished from the other 266 commutation cases only by the intervening policy directive of 1996 emphasizing public safety. Id. at 385. The court determined that the primary basis for the Board's decisions in Mickens-Thomas' case was the risk of potential harm to public safety, that the Board defaulted in its duty to consider factors other than the underlying offense and risk to public safety, and that the Board had failed to address any of the factors favoring release. Id. at 388. The court determined that the Board in Mickens-Thomas' case "inappropriately relied on policies implemented in 1996, rather than the parole policies in place at the time of Thomas' crime and conviction." Id. at 387. The court ordered the Board to review Mickens-Thomas for parole under the policies in effect prior to 1996. Id. at 393.
Prior to the Third Circuit's decision in Mickens-Thomas, the Pennsylvania Supreme Court had addressed in Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002), an ex post facto claim based on the amendment to 61 P.S. § 331.1. There was no majority opinion in Winklespecht. In the opinion announcing the judgment of the court, Justice Eakin determined that the "rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense." Id. at ¶ 691-92. Justice Eakin further indicated that "[a]lthough the language concerning `protect[ing] the safety of the public' and `assist[ing] in the fair administration of justice' was added to § 331.1 in 1996, these concepts are nothing new to the parole process and have always been underlying concerns." Id. at 692. Justice Eakin further indicated that under both versions of Section 331.1 the decision to grant parole is within the discretion of the Board and "the fact that some language was added in 1996, which clarified the policy underlying the parole process, does nothing that increases Winklespecht's punishment." Id.
The Third Circuit addressed the Winklespecht decision in Mickens-Thomas. The Court stated:
Since oral argument in this matter, the Board has called to our attention the recent Pennsylvania Supreme Court decision, Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002). The Board cites this case in support of the proposition that § 331.1's concern with "protect[ing] the safety of the public," added "nothing new to the parole process and [has] always been [an] underlying concern." Id. The Pennsylvania Supreme Court held that § 331.1 does not change Pennsylvania policy as to the criteria for parole "[n]or did the addition of this [new] language create a new offense or increase the penalty for an existing offense." Focusing on the added language to § 331.1 concerning "protect[ing] the safety of the public" and "assist[ing] in the fair administration of justice," the court concluded that these concepts have always been underlying concerns.
This decision, made after the Board's actions on Thomas's parole, came too late to alter the Board's view of the statutory amendment on the outcome of this case. Not having the benefit of the Supreme Court decision, the evidence before us shows that the Board interpreted § 331.1 to mandate foremost the consideration of public safety. The Board mistakenly construed the 1996 statutory change to signify a substantive change in its parole function. See Gall v. Parker, 231 F.3d 265, 304 (6th Cir. 2000). As we noted previously, a public statement of the Board chairman and Board policy declaration confirm this substantive change in Board policy. The Pennsylvania Commonwealth Court too understood the 1996 amendment to enact a substantive change in Board policy. See Stewart, 714 A.2d at 508; Myers, 712 A.2d at 799. The Board's actions and policy pronouncements demonstrate a marked added weight on public safety concerns, uninfluenced by the subsequent Court interpretation of the statute.Id. at 391.
As noted above, there was no majority opinion in Winklespecht. However, in a subsequent decision — Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 684, 690 (Pa. 2003) — a majority of the Pennsylvania Supreme Court held that "the 1996 revision of § 331.1 of the Parole Act does not violate the ex post facto clause when applied to a prisoner convicted prior to the revision." Recently, however, in Cimaszewski v. Board of Probation and Parole, 868 A.2d 416, 427 (Pa. 2005), a majority of the Pennsylvania Supreme Court held that the 1996 amendment to the parole law may be shown to violate the Ex Post Facto Clause if an inmate is able to demonstrate that, as applied to him, the amendment creates a significant risk of prolonging his incarceration. The court further held that "[t]o the extent that Finnegan failed to comport with the reasoning of Garner and Morales in this regard, Finnegan is hereby overruled." Id.
The Board argues Mickens-Thomas is distinguishable from the instant case in that in this case the Board considered a variety of factors in deciding whether or not to grant the petitioner parole. The Board also contends that the percentage of offenders paroled actually increased after the 1996 amendment to the Parole Act. The Board also argues that the fact that the petitioner himself was paroled in 2000 indicates that the 1996 amendment to the Parole Act has not been applied in his case to focus exclusively on public safety. Finally, the Board contends that as of December 31, 2002 the decision in Winklespecht informs its decisions and that by the time it denied the petitioner parole in 2003 and 2004 it had the benefit of the Pennsylvania Supreme Court's interpretation of 61 P.S. § 331.1 as merely a clarification of Pennsylvania's parole policy and it was aware it should not apply added weight to the issue of public safety. For these reasons, the Board argues that there has been no ex post facto violation in this case.
A number of judges of this court have found no ex post facto violation in cases where the parole decision was made after Winklespect. See Palumbo v. Kelchner, Civil No. 1:CV-040-891 (M.D.Pa. Dec. 29, 2004) (Caldwell, J.); Long v. Pennsylvania Board of Probation and Parole, Civil No. 1:CV-040-699 (M.D.Pa.Dec. 29, 2004) (Caldwell, J.); Tucker v. Patrick, Civil No. 3:CV-04-1232 (M.D.Pa. Dec. 7, 2004) (Vanaskie, C.J.); Grob v. Pennsylvania Board of Probation and Parole, Civil No. 3:CV-04-0275 (M.D.Pa. Oct. 29, 2004) (Nealon, J.); Schaeffer v. Pennsylvania Board of Probation and Parole, Civil No. 3:CV-04 1159 (M.D.Pa. Oct. 26, 2004) (Munley, J.); Sphar v. Pennsylvania Board of Probation and Parole, Civil No. 3:CV-04-1145 (M.D.Pa. Oct. 26, 2004) (Munley, J.).
"Except for individuals whose parole decisions were made after adoption of the 1996 changes, and before Winklespecht clarified the fact that the amendment did not change the administration of the policies, it is presumed that parole reviews are made with the understanding that the 1996 amendments did not change the analysis used in the parole proceedings." Grob, supra, at 6. "After Winklespecht, there must be at least some evidence supporting a rational inference that the Board is taking action contrary to the result that would have obtained prior to 1996." Tucker, supra, at 11. "Otherwise, a court is unable to discern that, in practice, the Board has elected to apply new policies to inmates whose crimes were committed before 1996." Id. "The mere denial of parole is not sufficient to raise such an inference." Id.
The Board's last review of the petitioner for parole occurred in August of 2004, after the Board had the benefit of Winklespecht indicating that the rewording of 61 P.S. § 331.1 did not change Pennsylvania policy as to the criteria for parole. In its August 2004 decision the board indicated that it had considered the petitioner's interests as well as the interests of the public. See Doc. 11, Exhibit L ("Your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled."). Unlike in Mickens-Thomas, the petitioner has not presented evidence to raise an inference that the Board has concocted reasons to justify applying 1996 criteria to deny the petitioner parole, and there is no indication that the Board placed unnecessary weight on the issue of public safety. Thus, we conclude that the Board has not violated the Ex Post Facto Clause with respect to its most recent decision.
We need address only the most recent parole decision since the Board's consideration of the petitioner for parole in August of 2004 moots the petitioner's challenge to the prior denial of parole. See Schaeffer v. Pennsylvania Board of Probation and Parole, Civil No. 3:CV — 04 1159, slip op. at 5 (M.D.Pa. Oct. 26, 2004) (holding that challenges to prior parole denials are moot given that an additional hearing has been held by the Board).
III. Due Process Claim.
The petitioner claims that the Board's denial of parole was arbitrary and capricious. We construe this claim as a due process claim.
A Pennsylvania prisoner does not have a constitutionally protected liberty interest in being released on parole. See Greenholtz v. Inmates of Nebraska Penal Correctional Complex, 442 U.S. 1, 7 (1979) (the Constitution creates no liberty interest in parole); Weaver v. Pennsylvania Bd. of Probation and Parole, 688 A.2d 766, 770 (Pa.Commw.Ct. 1997) ("Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law abiding citizen in society.") The Board has broad discretion in deciding when, or if, a prisoner should be released on parole. McGill v. Pennsylvania Dept. of Health, Office of Drug and Alcohol Programs, 758 A.2d 268, 271 (Pa.Commw.Ct. 2000). However, the Board may not arbitrarily deny parole on the basis of impermissible criteria such as race, religion or the exercise of free speech rights, or on criteria with no rational relationship to the purpose of parole. Block v. Potter, 631 F.2d 233, 236-37 (3d Cir. 1980).
It is clear that in the instant case the Board did not deny the petitioner parole on the basis of impermissible criteria. Rather, the reasons set forth by the Board in its 2004 decision denying parole were the petitioner's lack of remorse for his offense; the petitioner's prior history of supervision failure; reports, evaluations and assessments concerning the petitioner's physical, mental and behavior condition and history; and the petitioner's interview with the hearing examiner and/or board member. These are permissible criteria for the Board to consider and we can not say that the Board's decision was arbitrary or capricious. See Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001) ("[F]ederal courts are not authorized by the due process clause to second-guess parole boards and the requirements of substantive due process are met if there is some basis for the challenged decision."). Accordingly, the petitioner's due process claim is without merit.
IV. Number of Votes to Grant Parole.
The petitioner claims that the Board violated 61 P.S. § 331.4.
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). Federal habeas corpus relief does not lie for errors of state law. Id. at 67.
The petitioner's claim that the Board violated a 61 P.S. § 331.4 is a claim of a violation of state law and is not a cognizable habeas claim.
We note that it may be that the petitioner is claiming that the Board violated the Ex Post Facto Clause because the decision to deny him parole was not made by a panel of two persons as provided for in 61 P.S. § 331.4(b).
In Myers v. Ridge, 712 A.2d 791 (Pa.Commw.Ct. 1998), the Commonwealth Court addressed a claim by a prisoner that an internal policy of the Board requiring three votes before granting parole violated the Ex Post Facto Clause. In that case, the court stated that in 1995, "following the parole of Robert "Mudman" Simon, the Board adopted a specific parole policy for parole candidates who are `violent offenders.'" Id. at 797. The court stated that the "policy requires the affirmative vote of three persons, including at least one Board member, before parole can be granted." Id. The court held that the three-vote requirement is merely a procedural change which does not violate the Ex Post Facto Clause. Id. at 798.
It may be that the petitioner in this case is making the same argument as the prisoner in Myers, i.e. that an internal Board policy requiring three votes to parole a violent offender violates the Ex Post Facto Clause. However, the petitioner can not establish an ex post facto violation.
In 1982, the time of the petitioner's offense, Section 331.4 of Pennsylvania's Parole Act provided that "[n]o person shall be paroled, discharged from parole, or the parole of any person revoked, except by a majority of the entire membership of the board." 61 P.S. § 331.4 (1964). In 1982 the Board consisted of five members. See Act of Dec. 27, 1965, (P.L. 1230, No. 501 § 2) (changing the Board of Parole to the Board of Probation and Parole and changing the number of members of the Board from three to five). Thus in 1982, to be paroled a prisoner needed three votes in favor of parole.
61 P.S. § 331.4(a) currently provides, in pertinent part that "[e]xcept as provided in subsections (b), (c) and (d), no person shall be paroled, discharged from parole, or the parole of any person revoked, except by a majority of the entire membership of the board." Subsection (b) of Section 331.4 provides that the board may make parole decisions in panels of two persons and that a panel shall consist of one board member and one hearing examiner or of two board members. Subsection (c) of Section 331.4 provides that if there is a disagreement on a decision to parole between the members of a panel the matter shall be decided by a board member (appointed by the chairman) who shall concur with one of the original panel members. Subsection (d) of Section 331.4 provides that an interested party may appeal a revocation decision and provides how such an appeal will be decided. Pursuant to 61 P.S. § 331.2, the Board consists of nine members.
The change to § 331.4 to allow parole decisions to be made by a panel of two was made in 1986. See Act of Oct. 9, 1986, (P.L. 1424, No. 134 § 4); 12 West's Pa. Prac., Law of Probation Parole § 2:11. The increase in the size of the Board from five members to nine members was made in 1996. See Act of Dec. 18, 1996, (P.L. 1098, No. 164 § 2); 12 West's Pa. Prac., Law of Probation Parole § 2:12.
At the time of the petitioner's crime a prisoner needed a majority vote of the five member Board to obtain parole. The statutory amendment in 1986 that allowed the Board to act in panels of two post dates the petitioner's offense. Thus, at the time the petitioner committed his crime he had no expectation that he would be entitled to parole on the basis of an affirmative vote of only two decision makers.
"It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law." Dobbert v. Florida, 432 U.S. 282, 294 (1977). Given that at the time he committed his crime a prisoner needed to obtain three votes to obtain parole, the petitioner's ex post facto claim is without merit.
V. Claim Regarding Presumptive Ranges.
We construe the petition in this case as raising a claim that in denying parole the Board violated presumptive ranges set forth by Board regulations or policy.
We note that the respondent construed the petitioner's references to presumptive ranges to be a claim that the Board acted improperly when it revoked his parole and recommitted him to serve eighteen months backtime. However, the petitioner states in his petition that he when his parole was revoked he was given a term of 18 months and that "this range was correct." Doc. 1 at page 2 of Memorandum of Law. Thus, we construe the petitioner's claim not as a challenge to the original eighteen months of backtime imposed but to the subsequent denials of parole by the Board.
As set forth before, federal habeas corpus relief does not lie for errors of state law. Thus, the petitioner's claim that the Board violated the presumptive ranges set forth in state law is not cognizable as a federal habeas claim.
VI. Claim Regarding Sentencing.
The final claim we identified in the petition is that the trial judge failed to follow Pennsylvania Sentencing Guidelines in sentencing the petitioner to 10 to 20 years on his robbery conviction. Once again, this claim is a claim of a violation of state law and is not cognizable as a federal habeas claim.
VII. Recommendation.
Based on the foregoing, it is recommended that the petition for a writ of habeas corpus be denied and that the case file be closed.