Opinion
Civil Action No. 05-2070.
October 21, 2005
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Michael Walker ("Petitioner"), a state prisoner currently incarcerated in the State Correctional Institution ("SCI") at Graterford, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
I. FACTS AND PROCEDURAL HISTORY:
In April 1993, Petitioner was tried before the Honorable James A. Lineberger, Court of Common Pleas of Philadelphia County, and convicted of robbery, aggravated assault and criminal conspiracy. The court sentenced him to five (5) to ten (10) years of imprisonment. In December 1993, Petitioner was tried before the Honorable Thomas Watkins, Court of Common Pleas of Philadelphia County, and convicted of aggravated assault and violation of probation. The court sentenced him to three (3) to ten (10) years of imprisonment to run concurrently with his other sentences. Petitioner served time at SCI Somerset until April 8, 1996, when he was released to the Volunteers of America ("VOA") Group Home. Petitioner escaped from the VOA Home on August 23, 1996. Petitioner's May 4, 2004, arrest in Philadelphia resulted in new charges of criminal conspiracy, simple assault, and recklessly endangering another person. The Philadelphia Municipal court convicted him of these charges in January 2005, and sentenced him to one (1) to two (2) years of imprisonment to run concurrently with his 1993 sentences. The Pennsylvania Department of Corrections calculated Petitioner's sentence to have a minimum expiration date of December 21, 2005, and a maximum expiration date of July 17, 2010. See Resp't Appendix to Answer, Sentence Status Summary. Petitioner has been incarcerated at SCI Graterford since June 1, 2004, to serve the remainder of his 1993 sentences.
Petitioner was arraigned on a criminal escape charge, dating back to his 1996 escape from the VOA home. At a subsequent preliminary hearing, the District Attorney withdrew the charge.
On April 26, 2005, Petitioner filed the instant petition for a writ of habeas corpus asserting violations of his Double Jeopardy and Due Process rights because he is currently serving the remainder of his sentence pursuant to his 1993 convictions. Specifically, Petitioner argues that the Department of Corrections has improperly incarcerated him pursuant to an expired sentence. Respondent has filed an answer to the petition alternatively arguing that Petitioner's claim is unexhausted and without merit.
Petitioner avers that he has filed a state habeas corpus petition raising the same issues as he has raised here. The disposition of this action is unknown.
II. DISCUSSION
A. Exhaustion
A federal court, absent unusual circumstances, should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b). A petitioner will not be deemed to have exhausted available state remedies if he had the right under the law of the state to raise, by any available procedure, the question presented. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) ("we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts"); Picard v. Connor, 404 U.S. 270, 276 (1971). The habeas corpus petitioner has the burden of proving exhaustion of all available state remedies. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C.A. § 2254).
The Commonwealth Court is empowered to hear a petition for review against the Department of Corrections to challenge sentence calculation. See, e.g., Commwealth v. Perry, 563 A.2d 511, 512-13 (Pa.Super. 1989) ("If the alleged error is thought to be the result of an erroneous computation of sentence by the Bureau of Corrections, then the appropriate vehicle for redress would be an original action in the Commonwealth Court challenging the Bureau's computation."). In the instant matter, Petitioner failed to petition the Commonwealth Court to challenge the Bureau of Corrections computation of his sentence. As a result, I find that this claim is unexhausted.
I may, however, deny a habeas claim on the merits even where the petitioner has failed to satisfy exhaustion. See U.S.C. § 2254(b)(2). An examination of the underlying interests of the state court system, as well as the interests of Petitioner himself, supports bypassing the exhaustion requirement. Moreover, upon review of Petitioner's claim, I find that there is clearly no basis for relief. As a result, I will address the merits of the claim.
Exhaustion is a rule of comity, rather than a jurisdictional requirement. Granberry v. Greer, 481 U.S. 129, 131 (1987). In Granberry, the Supreme Court adopted a flexible approach in deciding whether to dismiss a habeas petition with an unexhausted claim. The Court directed the court of appeals to "determine whether the interests of comity and federalism [would] be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of petitioner's claim." Granberry, 481 U.S. at 134. When it is clear that a habeas petitioner raises no claim for which there is relief in a federal court, the interests of state courts and federal courts are well served, even if the claims are not exhausted, if the district court denies the petition. Id. at 135. The AEDPA codified the holding in Granberry in 28 U.S.C. § 2254(b)(2) by conferring upon the district court the authority to deny a habeas petition on the merits despite the petitioner's failure to exhaust state remedies. Lambert v. Blackwell, 134 F.3d 506, 515 (3d Cir. 1997) (citing Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir. 1997)). When § 2254(b)(2) is read in conjunction with Granberry, the Third Circuit has determined that the appropriate test to apply to a petition is whether "it is perfectly clear that the applicant does not raise even a colorable federal claim." Lambert, 134 F.3d at 515 (citing Granberry, 481 U.S. at 135); see also Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002); Farley v. Pa. Bd. Of Prob. Parole, 2004 WL 1941251, at *4 (E.D.Pa. Aug. 31, 2004).
B. Double Jeopardy and Due Process Claims
(1) Double Jeopardy Claim
Petitioner first argues that his double jeopardy rights have been violated. The double jeopardy clause bars a second prosecution for the same offense after an acquittal or conviction, as well as multiple punishments for the same offense. Commonwealth v. McGee, 744 A.2d 754, 756 (Pa. 2000); U.S. Const. amend. V. While a prisoner cannot be compelled to serve a sentence in installments and has a right to serve his sentence continuously, his act of escape tolls the running of his sentence so that any lawfully imposed sentence may be extended accordingly without giving rise to a double jeopardy violation. Robinson v. Commonwealth, 377 A.2d 1277, 1278 (Pa. 1977). Petitioner asserts that his double jeopardy rights have been violated because he is currently serving time remaining from "expired" 1993 sentences. He reasons that because his original maximum sentence expired in 2002, and the Commonwealth did not prosecute him for criminal escape, it is illegal to imprison him now. This is simply wrong. The fact is that Petitioner served less than four (4) years of a ten (10) year maximum sentence when he escaped from the VOA Home. Petitioner does not dispute the fact that he left the VOA Home without authorization and never returned. It is well established in Pennsylvania that escapees have no entitlement to credit for time spent on unauthorized absence from the appropriate authorities, even though they are not formally convicted of escape. Poindexter v. Pa. Bd. of Prob. Parole, 407 A.2d 480, 481 (Pa. 1979) (citing Commonwealth ex rel. Goins v. Rundle, 192 A.2d 720 (Pa. 1963); Commonwealth ex rel. McNeair v. Banmiller, 139 A.2d 633 (Pa. 1958); and Commonwealth ex rel. Tyson v. Day, 124 A.2d 426 (Pa. 1956)). Therefore, I conclude that Petitioner does not have a valid double jeopardy claim.
Petitioner's 1993 conviction for aggravated assault and probation violation carried a sentence of three (3) to ten (10) years with an effective date of October 11, 1992. From that date until the date of Petitioner's escape, August 23, 1996, Petitioner served a sentence of three (3) years, ten (10) months, and eleven (11) days.
(2) Due Process Claim
Petitioner also claims that his due process rights have been violated. Under the Fourteenth Amendment, a state may not authorize deprivation of protected liberty or property interest without providing a procedural mechanism in connection with that deprivation that satisfies the requirements of due process. See U.S. Const. amend. XIV. An inmate has a liberty interest recognized by federal and state law to be released upon expiration of his sentence and a state can not deprive him of that interest without procedural due process. Sample v. Dieks, 885 F.2d 1099, 1114 (3d Cir. 1989). In order to establish that the state has violated an individual's right to procedural due process, a petitioner must (1) demonstrate the existence of a protected interest in life, liberty, or property that has been interfered with by the state, Board of Regents v. Roth, 408 U.S. 564, 571 (1972); and then, (2) establish that the procedures attendant upon that deprivation were constitutionally insufficient. Hewitt v. Helms, 459 U.S. 460, 477 (1983).
Petitioner has failed to prove that any protected interest has been interfered with, or that any procedures were constitutionally deficient. He is currently incarcerated pursuant to a valid sentence. Accordingly, I conclude that the facts of this case do not give rise to a valid due process claim.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of October, 2005, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DENIED.
3. There is no basis for the issuance of a certificate of appealability.