Opinion
CIvil Action No. 04-842.
August 12, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Shawn Maurice Stanard ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is currently incarcerated in the State Correctional Institution Smithfield at Huntingdon, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus and Memorandum of Law, the Amended Petition, the Response, and the exhibits attached to those pleadings.
Petitioner pled guilty in the Court of Common Pleas of Philadelphia County on March 12, 1992 to two counts of robbery and two counts of criminal conspiracy-robbery for two separate criminal incidents. Petitioner was sentenced by the Honorable James Fitzgerald for the first criminal incident (Dkt. No. CP 9106-1326, 1327) to two concurrent 5 to 10 year periods of probation. Petitioner was also sentenced for the second criminal incident (Dkt. No. CP 9201-300, 304) to two concurrent five to ten years' probation, to be served concurrently to the other sentences.
On April 27, 1993, Petitioner pled guilty to an illegal narcotics charge in the Philadelphia Court of Common Pleas (Dkt. No. CP 9105-3536), and was sentenced to six to twelve months' incarceration by the Honorable Albert J. Snite. This sentence was to run consecutively to all of Petitioner's other sentences. Petitioner's maximum release date for all of these sentences was February 21, 2003.
Petitioner's parole application was granted on March 21, 2001, and Petitioner was paroled on April 23, 2001. On September 10, 2001, the PBPP declared Petitioner delinquent effective September 9, 2001. On April 25, 2003, Petitioner was arrested by the Philadelphia Police Department, and the PBPP lodged a detainer against him. The PBPP found Petitioner to be a technical parole violator on June 25, 2003, and ordered him to serve the remainder of his unexpired term. The unexpired term of Petitioner's controlling sentence was one year, five months, and twelve days from September 9, 2001, the date of the delinquency, to February 21, 2003, the date of his original maximum.
Petitioner remained delinquent for an additional two months and four days past his maximum release date until the PBPP's detainer was lodged on April 25, 2003. Thus, a total of one year, seven months, and sixteen days should have been added to the February 21, 2003 original maximum release date for Petitioner's controlling sentence. Thus, Petitioner's new maximum release date was October 7, 2004. The PBPP admits that it erred in making these calculations, and calculated Petitioner's unexpired term as one year, four months, sixteen days, but actually added a total of one year, six months, sixteen days to Petitioner's original maximum release date. This resulted in the PBPP's records reflecting an incorrect new maximum release date of September 7, 2004 for the controlling sentence.
In response to inquiries by Petitioner about his time credit in the Philadelphia Prison System while he awaited conviction and transfer to state custody, Robert J. Durison, the Director of Classification, Movement and Registration of the Philadelphia Prison System, declared on November 5, 2003, that Petitioner was entitled to additional credit on the first robbery and criminal conspiracy convictions (CP 9106-1326, 1327). Petitioner was granted additional credit on this sentence for the time he spent in the custody of the Philadelphia Prison System from May 3, 1991 to June 7, 1991, and from December 18, 1991 to December 19, 1991, a total of thirty-eight days.
Upon receiving this updated time credit information on January 5, 2004, the PBPP recalculated Petitioner's maximum release date as August 29, 2004. The relevant Department of Corrections ("DOC") records also reflect August 29, 2004 as Petitioner's current maximum release date.
Petitioner's original maximum term of imprisonment for the CP 9106-1326, CP9106-1327, and CP 9105-3536 sentences was decreased by thirty-eight days from February 21, 2003, to January 13, 2003. Petitioner's unexpired term was recalculated as one year, four months, and four days (September 9, 2001 was the date of delinquency to January 13, 2003, the new date of the original maximum). Because Petitioner remained delinquent for an additional three months and twelve days until the Board's detainer was lodged on April 25, 2003, a grand total of one year, seven months, and sixteen days was the amount to be added to Petitioner's original maximum date, now January 13, 2003.
On February 26, 2004, Petitioner filed the instant Petition, alleging that the PBPP pushed his maximum release date back from July 4, 2004, to August 29, 2004, without an explanation or just cause. (Pet. at 9-11.) The Honorable Michael M. Baylson referred the Petition to this Court for preparation of a Report and Recommendation on April 22, 2004. The Response was filed on June 24, 2004, and Respondents contend that Petitioner has failed to exhaust his state court remedies and the Petition fails to raise any cognizable constitutional claims. They therefore claim that the Petition is procedurally defective and meritless.
II. DISCUSSION.
Respondents first note that Petitioner has not raised any of the grounds for which he seeks habeas relief in the Pennsylvania state courts. Respondents also note that Pennsylvania courts have jurisdiction over claims alleging improper calculation of an inmate's criminal sentence, and must be presented to the Commonwealth Court of Pennsylvania as an action for mandamus. Bright v. Pa. Bd. of Prob. Parole, 831 A.2d 775, 777-778 (Pa.Cmwlth. 2003); Jackson v. Vaughn, 777 A.2d 436, 438 (Pa. 2001). Petitioner admits that he has not presented any of his claims in the state court. As such, he has not exhausted his available state remedies and this Petition should be denied without prejudice and dismissed without an evidentiary hearing. The exhaustion requirement is excused only where there is an absence of remedies available to a petitioner or when circumstances exist that render such process ineffective to protect the rights of a petitioner. See 28 U.S.C. § 2254(b)(1)(A), (B).
In the instant case, although Petitioner has not exhausted his state court remedies, because he is very close to or has exceeded his maximum release date, it is unlikely that if he waited to present these claims to the state courts, he would be precluded from relief. Therefore, the state court process would be ineffective to protect Petitioner's rights.
Petitioner's sole claim is that his maximum sentence expired on July 4, 2004, and any detention beyond that date violates his Eighth Amendment right to be free from cruel and unusual punishment. See Pet. at 10. Petitioner alleges that his maximum release date is July 4, 2004, but he provides no explanation of how he reaches this conclusion. Rather, he only alleges that Mr. Durison's letter states that his maximum release date should be July 4, 2004. A review of this correspondence reveals that Mr. Durison notes that some additional time credit should be put toward one of Petitioner's sentences, which the Respondents contend that they have done. There is no declaration in the letter that Petitioner's maximum release date should be July 4, 2004. See Resp., Ex. R-4. The PBPP and DOC credited one of Petitioner's sentences. Thus, because Petitioner continues to serve a valid unexpired sentence, his habeas claim fails.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There are no grounds upon which to issue a certificate of appealability.