Opinion
Civil Action No. 03-5947.
May 28, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Stephen L. Mills ("Petitioner") currently is incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania. Petitioner alleges that he is being held beyond his maximum sentence. See Petition for Writ of Habeas Corpus ("Pet.") at 9-11. The Honorable Edmund V. Ludwig referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, it is recommended that Petitioner's habeas petition be dismissed without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts contained in this section were gleaned from the Petition for Habeas Corpus, Respondents' Answer and Supplemental Answer, and record, inclusive of all exhibits thereto.
On April 4, 1978, before the Honorable James D. McCrudden, Petitioner was sentenced to three (3) to ten (10) years for burglary (indictment #1667). See Respondent's Brief ("Resp.") at Exh. "A" (Sentence Status Summary). Petitioner's minimum expiration date for conviction # 1667 was February 18, 1978; his maximum expiration date was February 18, 1988. See id. On December 16, 1980, the Pennsylvania Board of Probation and Parole ("Board") granted Petitioner parole effective February 18, 1981. See Resp. at Exh. "B" (Board Decision, Jan. 5, 1981). On November 16, 1982, Petitioner was arrested and returned to custody. See Resp. at Exh. "C" (Board Decision, Dec. 20, 1982). Judge McCrudden, on November 22, 1983, found Petitioner guilty of burglary (indictment # 3339) and sentenced him to ten (10) to twenty (20) years of incarceration. See Resp. at Exh. "D" (Sentence Status Summary, Oct. 2, 2001). On March 28, 1984, Petitioner was ordered to serve twenty-four (24) months of back-time (owed on conviction # 1667), because of the parole violation occasioned by conviction # 3339. See Resp. at Exh. "E" (Board Decision, Mar. 28, 1984). Petitioner's violation pushed his reparole date back on conviction # 1667 to March 28, 1986.
Backtime, the remainder of an existing judicially — imposed sentence, must be served by a parolee following a finding after a civil administrative hearing that the parolee violated the terms and conditions of parole, must be served before the parolee may be eligible for parole." Krantz v. Commonwealth of Pennsylvania, Board of Probation and Parole, 483 A.2d 1044, 1047 ( Pa. Commw. 1984). Thus, if a person commits a crime while on parole, and is recommitted as a parol violator, he is not entitled to any sentence credit for the time spent at liberty on parole. See 61 P.S. § 331.21a(a).
Petitioner served one year, four months, and twelve days on conviction # 3339, between the time of his arrest, on November 16, 1982, and the Board's March 28, 1984 determination of back time due. See Resp. Exhs. "D" and "E." Once Petitioner was reparoled from conviction # 1667, on September 28, 1986, he began serving the balance of conviction # 3339. See Resp. at Exh. "F." Confinement for conviction # 3339, considering the credit for time already served, ended May 16, 1985. See Resp. at Exh. "D." Consequently, Petitioner's controlling minimum date became May 16, 1995 and his maximum date became May 16, 2005. See id.
Although Petitioner was reparoled on August 28, 1999, see Resp. at Exh. "G" (Board Decision, June 14, 1999), on August 16, 2000, he admitted to cocaine use, a technical parole violation. See Pet. at Exh. "A." Significantly, the Notice of Charges and Hearing Sheet bearing that admission, erroneously listed Petitioner's offense as rape and his maximum release date as May 6, 2000. See id. This calculation deviated from all other sheets and did not include twelve (12) months of back time that Petitioner was ordered to serve as a technical parole violator. See Resp. at Exh "H" (Board Decision, Oct. 3, 2000). Thus, the Board correctly reset Petitioner's maximum date of incarceration as May 16, 2005, factoring in the four years and nine months of back-time remaining on conviction # 3339. See Resp. at Exh. "H."
In fact, every Board decision before and after the Notice Sheet was signed by Petitioner has correctly reported Petitioner's Maximum date as May 16, 2005. See Resp. at Exhs. "G," "H," "I," and "J."
Next, on September 5, 2001, the Board paroled Petitioner to an RSAT Program Phase II facility. See Resp. at Exh. "I" (Board Decision, Sept. 5, 2001). On May 15, 2002, the Board rescinded its decision and incarcerated Petitioner, as a result of his discharge from the program. See Resp. at Exh. "J."
On October 28, 2003, Petitioner filed the instant writ of Habeas Corpus alleging that:
1. His maximum sentence expired on September 16, 2000, implicating the Equal Protection Clause;
2. August 16, 2000 violation hearing documents were "fabricated and falsified," implicating an Eighth Amendment violation; and
3. He is being incarcerated beyond expiration of his maximum sentence, implicating the Cruel and Unusual Punishment Clause.See Pet. at 9-10. However, Petitioner's claims are unexhausted and, hence, unreviewable.
II. DISCUSSION
A 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); see Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993), aff'd. 30 F.3d 1488 (3d Cir. 1994) (citations 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, Delaware County, Pennsylvania, 959 F.2d 1227, 1230-31 (3d 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. See Picard, 404 U.S. at 278. See Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) ( citing Picard), cert. denied 110 S.Ct. 759 (1990); Bisaccia v. Atty. Gen. of N.J., 623 F.2d 307, 310 (3d Cir. 1980) ( quoting Picard), cert. denied 101 S.Ct. 622 (1980).
The exhaustion requirements of 28 U.S.C. § 2254 provide:
(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 applicant 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 this section, if he has the right under the law of the State to raise, by any available procedures, the question presented.
Petitioner never presented the within claims to any state court. Therefore, he has not satisfied federal habeas corpus exhaustion requirements. No basis for any exception has been proffered and this court finds none to be applicable. Inasmuch as Petitioner concedes that he has not presented his sentencing claim to any state court, his claims should be dismissed without consideration of their merits. See Pet. at 5-8. Accordingly, I make the following:
Moreover, if this court were to waive exhaustion requirements, and determine the merits of his claim pursuant to 28 U.S.C. § 2254(b)(2), Petitioner would fare no better. Contrary to Petitioner's assertions, the Sentence Status Summary Sheets reflect: credit for the time Petitioner spent incarcerated prior to conviction #1667; an adjustment for the statutory consecutive backtime sentence (see 61 P.S. § 331.21a) of seven (7) years for time spent on parole prior to violations; a fresh ten (10) to twenty (20) year sentence on conviction # 3339; and appropriate credit to the latter sentence of one year, four months and 12 days. See Resp. Exhs. "A," "D," "L". On September 28, 1996, Petitioner was paroled on conviction #1667 and began serving his ten year conviction #3339 sentence. See id. Once credit was given of one year, four months, and 12 days already served of that sentence, Petitioner's effective maximum release date was calculated to be May 16, 2005. See id. The only record that contradicts this calculation is Petitioner's Exh. "A," a Notice of Charges and Hearing that is both internally inconsistent and conflicts with all other documentation. This document erroneously stated that the offense was for rape, while giving information on an urine sample that tested positive for cocaine, and cited to a release date that exceeded the maximum sentence run date. Accordingly, this document was accorded little weight; the remaining co nsistent documents do not support finding a constitutional violation.
RECOMMENDATION
AND NOW, this 28th day of May 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to U.S.C. § 2254 be DISMISSED without an evidentiary hearing and without prejudice to his right to refile after exhausting state remedies. Petitioner has not demonstrated a substantial violation of any Constitutional right; therefore, there is no probable cause to issue a certificate of appealability.