Opinion
Civil Action No. 2:19-CV-00165
02-19-2020
EUGENE FRAZIER, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, WARDEN OF SCI ALBION, and THE ATTORNEY GENERAL OF PENNSYLVANIA, Respondents.
United States District Judge Robert J. Colville REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 6) filed by Petitioner, Eugene Frazier, be denied and that a certificate of appealability not be issued.
II. REPORT
Petitioner, Eugene Frazier ("Frazier" or "Petitioner"), brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, complaining that the Pennsylvania Board of Probation and Parole ("Board") exceeded its jurisdiction when it recommitted him as a convicted parole violator ("CPV") and extended his parole violation maximum date after his original maximum sentence date had expired. For the reasons that follow, it is recommended that the petition be denied.
A. Relevant and Procedural Background
On February 27, 2008, Frazier pled guilty in the Court of Common Pleas of Lawrence County to voluntary manslaughter and received a sentence of 5 to 10 years. His maximum sentence date was November 10, 2016. While on parole and six months before his maximum sentence date expired, Frazier was arrested on May 12, 2016, in Lawrence County and charged at Case No. CP-37-0000610-2016, with several crimes, including fleeing or attempting to elude officer. As a result of his arrest, the Board lodged a detainer holding him in custody until the disposition of these new charges. Frazier posted bond on the new charges but remained in custody due to the Board's detainer. On November 10, 2016, because Frazier's maximum sentence date on his manslaughter sentence expired, the Board lifted its detainer and Frazier was released on bond. His criminal case at CP-37-0000610-2016 remained pending.
Approximately four months after his release, on or about March 15, 2017, Frazier again was arrested in Lawrence County and charged with two firearm violations and several traffic violations. See CP-37-CR-0000615-2017.
On March 5, 2018, Frazier pled guilty to the Fleeing or Attempting to Elude Officer charge at CP-37-CR-0000610-2016, and was sentenced to a term of incarceration of 1-2 years. On that same day, he also pled guilty to the Carrying a Firearm Without a License charge at CP-37-CR-0000615-2017, and was sentenced to a term of incarceration of 2-1/2 - 6 years.
The Court takes judicial notice of Frazier's criminal dockets in the Court of Common Pleas of Lawrence County which are available at: https://ujsportal.pacourts.us/docketsheets/CPReport.ashx?. (site last visited 2/20/2020).
On May 2, 2018, while Frazier was being housed in the Lawrence County Jail, the Board issued Frazier a Notice of Decision mailed on June 22, 2018, "[r]ecommit[ting] [him] to a state correctional institution as a convicted parole violator to serve 12 months when available, pending return to a state correctional institution." (Id. at 16-17). Included within the notice was the statutory language from 37 Pa. Code Sec. 73 explaining that the Notice of Decision was "subject to the administrative remedies process" and "a request for administrative relief [must be filed] with the board within thirty (30) days of the mailing date of this decision." (Id. at 17).
The record reflects that Frazier reentered DOC custody on May 10, 2018. (ECF No. 12-1 at 2). The original mailing date on the Notice is June 6, 2018, but that date is crossed out, with a new mailing date of June 22, 2018, typed below it. (Id. at 17).
On May 29, 2018, the Board issued Frazier a second Notice of Decision, mailed on June 13, 2018, which referred to the May 2, 2018, decision, and was addressed to Frazier at SCI-Greene. (Id. at 18-19). Frazier was advised that his new parole violator maximum date had been recalculated to July 18, 2019, as the Board was not crediting Frazier for any time while at liberty on parole due to his poor supervision history. (Id. at 18). Once again, the Notice of Decision contained the statutory language advising Frazier that any administrative appeal of the Notice of Decision must be filed with the Board within thirty days of the mailing of the decision.
Even though the parole violator maximum date has passed, the instant habeas petition is not moot. Frazier is currently serving the sentence(s) imposed on March 5, 2018. The record reflects that Frazier's maximum sentence for his firearm conviction expires February 20, 2024. (ECF No. 12-1 at 2). If the Board erred in recommitting Frazier, a remedy may be granted which would shorten Frazier's release date for this sentence. Vines v. Diguglielmo, No. CIV.A. 06-2658, 2007 WL 210106, at *3-4 (E.D. Pa. Jan. 23, 2007) citing DeFoy v. McCullough, 393 F.3d 439 (3d Cir. 2005).
The record reflects that Frazier did not file an administrative appeal within thirty days. Rather, on October 24, 2018, four months after the Notice of Decisions were mailed, he filed a Motion for Time Credit in the Commonwealth Court of Pennsylvania. (Id. at 21). The court dismissed the motion for lack of jurisdiction, finding that it did not have original jurisdiction as the motion was an attempt to revive Frazier's lapsed appeal rights. (Id. at 33).
On February 10, 2019, the same date Frazier signed his federal habeas petition, Frazier contends he filed an administrative appeal challenging the Board's June 13, 2018, decision recalculating his parole violator maximum sentence date. (ECF. No. 6-1). Respondents contend that they have no record of such an appeal being filed. (ECF No. 12 at 7, n.1). It is clear from the record before this Court, however, that even assuming that Frazier filed this administrative appeal, it is undeniably signed by Frazier on February 10, 2019, well beyond thirty days after the June 13, 2018, decision was mailed.
Because of Frazier's status as an incarcerated individual proceeding pro se, he is afforded the benefit of the prisoner mail box rule and his habeas petition is deemed filed as of February 10, 2019, the date he signed his petition. Respondents filed an answer (ECF No. 12), in which they contend that (i) Frazier failed to exhaust his remedies in state court and thus, his claims are procedurally defaulted and (ii) Frazier's claims are meritless because the Board had jurisdiction to recommit Frazier as a CPV when Frazier committed a new crime while on parole. Frazier has not filed a Reply and has not sought an extension in which to do so. The matter is ripe for disposition.
The prisoner mailbox rule provides that "a pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court." Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). Absent proof of the exact date of delivering the habeas petition to the prison authorities, courts treat the date the petitioner signed the petition as the filing date. Here, the certificate on the petition indicates Frazier signed it on February 10, 2019. For this reason, the Court deems February 10, 2019, as the filing date.
B. Discussion
1. Statute of Limitations
Respondents do not dispute that Frazier's habeas petition was timely filed in this Court. The one-year statute of limitations for filing a habeas petition begins to run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). Since Frazier did not appeal the Commonwealth Court's denial of his motion, the applicable factual predicate date is the Commonwealth Court's order denying his petition on October 30, 2018. He filed the present petition on February 10, 2019, well within the one-year limitations period required by Section 2244(d)(1)(D).
2. Exhaustion and Procedural Default
While Frazier's habeas petition was timely filed in this Court, it nonetheless is recommended that the petition be denied because Frazier did not properly exhaust his administrative remedies resulting in a procedural default which bars federal habeas review.
"First, a state prisoner must exhaust available remedies before presenting his claim to a federal habeas court." Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). "This exhaustion requirement is [] grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). "Second, a federal court may not review federal claims that were procedurally defaulted in state court - that is, claims that the state court denied based on an adequate and independent state procedural rule." Davila, 137 S. Ct. at 2064.
To properly exhaust a federal constitutional claim regarding the Board's actions, a party must first seek administrative review with the Board itself pursuant to section 73.1 of the Pennsylvania Code. In relevant part, Section 73.1 provides:
§ 73.1. Appeals and petitions for administrative review.
(a) Appeals.
(1) An interested party, by counsel unless unrepresented, may appeal a revocation decision. Appeals shall be received at the Board's Central Office within 30 days of the mailing date of the Board's order. When a timely appeal of a revocation decision has been filed, the revocation decision will not be deemed final for purpose of appeal to a court until the Board has mailed its decision on the appeal.
. . .
(2) The scope of review of an appeal will be limited to whether the decision is supported by substantial evidence, an error of law has been committed or there has been a violation of constitutional law.
. . .
(4) Second or subsequent appeals and appeals which are out of time under these rules will not be received.
(b) Petitions for administrative review.
(1) A parolee, by counsel unless unrepresented, may petition for administrative review under this subsection of determinations relating to revocation decisions which are not otherwise appealable under subsection (a). Petitions for administrative review shall be received at the Board's Central Office within 30 days of the mailing date of the Board's determination. When a timely petition has
been filed, the determination will not be deemed final for purposes of appeal to a court until the Board has mailed its response to the petition for administrative review. ...37 Pa. Code §73.1
(3) Second or subsequent petitions for administrative review and petitions for administrative review which are out of time under this part will not be received.
The Pennsylvania Commonwealth Court has exclusive jurisdiction of final decisions of state governmental agencies. 42 Pa.Cons.Stat. § 763(a). A court reviewing an agency decision shall not affirm the administrative decision if it finds that the adjudication is in violation of the appellant's constitutional rights. 42 Pa.Cons.Stat. §§ 702, 704.
Fatal to Frazier's habeas petition is that he did not timely file an administrative appeal of the Board's decision. Rather, approximately four months after the Board's decision was mailed, he filed a Motion for Time Credit in the Commonwealth Court of Pennsylvania, which motion was dismissed for lack of jurisdiction. (ECF No. 12-1 at pg. 33). Then, unsuccessful in Commonwealth Court, on February 10, 2019, approximately eight months after the Board's decision was mailed, Frazier appears to have attempted to file an administrative appeal with the Board. (ECF No. 6-1). Such appeal is clearly well beyond the thirty-day timeframe for filing administrative appeals. For these reasons, the Court finds that Frazier failed to exhaust his claim, resulting in a procedural default.
A procedural default can be overcome, however, if a petitioner can demonstrate "cause" for the default, i.e., that some objective factor "external to the defense" impeded efforts to comply with the state's procedural rule, and "actual prejudice." See, e.g., Coleman, 501 U.S. at 750; Martinez v. Ryan, 566 U.S. 1 (2012); Murray v. Carrier, 477 U.S. 478, 488, 494 (1986). Frazier points to no evidence that establishes cause to overcome the procedural default.
For the reasons set forth above, it is respectfully recommended that the petition for writ of habeas corpus be dismissed with prejudice because Frazier failed to exhaust his claims and, as a result, his claim is procedurally defaulted. Moreover, Frazier has failed to produce any evidence from which this Court could find cause to overcome the procedural default.
3. Merits
Alternatively, even if the Court were to find that the procedural default should be excused, Frazier's petition is without merit. Frazier claims the action by the Board to recommit him after he had served the balance of his maximum sentence on November 10, 2016, is arbitrary, capricious, and constitutionally impermissible in violation of his substantive due process rights.
Importantly, the Court of Appeals for the Third Circuit has stressed that a substantive due process claim based upon alleged arbitrary and capricious action is not easily mounted. Hunterson v. DiSabato, 308 F.3d 236, 246-47 (3d Cir. 2002). That is because the relevant level of arbitrariness required to find a substantive due process violation involves more than an unreasonable action, but something that is more egregious and at times "conscience shocking." Hunterson, 308 F.3d at 246-47. It has made clear that "only the most egregious conduct will be considered arbitrary in the constitutional sense." Id. at 247-48. See also Newman v. Beard, 617 F.3d 775, 782 (3d Cir. 2010) ("Conduct can violate substantive due process if it shocks the conscience, which encompasses only the most egregious official conduct.") (internal quotations and citations omitted). Importantly, "federal courts are not authorized to second-guess parole boards and the requirements of substantive due process are met if there is some basis for the challenged decision." Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001); Newman, 617 F.3d at 782 ("The conduct must be intended to injure in some way unjustifiable by any government interest [.]") (internal quotations and citations omitted).
Frazier argues that once his maximum sentence expired, the Board no longer had jurisdiction to recommit him as a CPV. However, Frazier fails to recognize that he was recommitted as a parole violator based on his conviction for the criminal conduct he committed on May 12, 2016, while he was on parole. See Docket Court of Common Pleas of Lawrence County, CP-37-0000610-2016. A parolee, while on parole, remains under the jurisdiction of the Board and if the parolee commits a crime punishable by imprisonment and is convicted of that crime by a judge or jury, the parolee may be recommitted as a parole violator. 61 Pa.C.S. § 6138. If recommitted, it is left to the Board's discretion whether to award credit to a parolee for the time spent while on parole. Id. Further, the Board retains jurisdiction in certain circumstances to recommit a parolee even after the expiration of a maximum sentence date. Adams v. Pennsylvania Bd. of Prob. & Parole, 885 A.2d 1121, 1124 (Pa. Cmwlth. Ct. 2005); citing Wolfe v. Pennsylvania Bd. of Prob. & Parole, 558 A.2d 600 (Pa. Cmwlth. Ct. 1989). "There is no doubt that the Board can recommit and recompute the sentence of a parolee who commits a crime while on parole but is not convicted until after his original sentence expired." Id. (emphasis added), quoting Holland v. Pennsylvania Bd. of Prob. & Parole, 640 A.2d 1386, 1387 (Pa. Cmwlth. Ct. 1994), quoting Young v. Pennsylvania Board of Probation and Parole, 409 A.2d 843 (1979).
In the case sub judice, Frazier committed a new crime on May 12, 2016, while he was on parole, but was not convicted of the new crime until after his original sentence had expired. The record before this Court clearly reflects that the Board properly recommitted and recalculated Frazier's parole date pursuant to 61 Pa.C.S. § 6138. Frazier was provided with notice of the recommitment and an explanation of why he was not credited with street time. None of the Board's decisions, individually or collectively, can be said to be egregious. Moreover, none of the Board's decisions were based on constitutionally impermissible grounds. Although Frazier disagrees with the Board's decision, he has failed to demonstrate he was recommitted in violation of his substantive due process rights or that the Board's actions could be described as "conscience shocking."
In conclusion, it is recommended that Frazier's petition be denied as he has failed to make a substantial showing that his constitutional rights were violated when he was recommitted as a convicted parole violator.
3. Certificate of Appealability
Section 102 of the Antiterrorism and Effective Death Penalty Act, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Where the district court has rejected a constitutional claim on its merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds that Frazier has failed to substantially allege the denial of a constitutional right, much less show such a denial. Accordingly, it is recommended that a certificate of appealability not be issued.
III. CONCLUSION
For all these reasons, it is recommended that the petition for writ of habeas corpus be denied and that a certificate of appealability not be issued.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner, because he is a non-electronically registered party, must file objections to this Report and Recommendation by March 9, 2020, and Respondents, because they are electronically registered parties, must file objections, if any, by March 5, 2020. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge Dated: February 19, 2020 cc: EUGENE FRAZIER
HL-5577
SCI Albion
10745 Route 18
Albion, PA 16475
(via U.S. First Class Mail)
Timothy P. Keating
PA Board of Probation and Parole
(via ECF electronic notification)