Opinion
CIVIL ACTION NO. 03-6717
May 26, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Donnell Briddell ("Petitioner"), pursuant to 28 U.S.C. § 2254. The Petitioner is currently incarcerated in the State Correctional Institution at Coal Township, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice and 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.
Following a negotiated guilty plea, Petitioner was convicted of burglary, aggravated assault, conspiracy, and attempted rape in the Court of Common Pleas of Philadelphia County, Pennsylvania. Petitioner was sentenced to a term of seven to fifteen years' imprisonment for the burglary conviction (No. 8812-0274), effective March 2, 1989. The Department of Corrections initially applied the pretrial credits approved for the robbery conviction (No. 8707-1680) to all of Petitioner's convictions by listing the effective date for each conviction as March 2, 1998. In addition, on March 2, 1989, on each DOC Court Commitment sheet, it is stated that "This sentence shall be deemed to run concurrent to any existing sentences, effective the date of imposition unless otherwise stipulated below: sentence to run concurrently with CP8707-1680."See Resp., Exs. 1-5. Thus, each of Petitioner's sentences was deemed to run concurrent to his robbery conviction, which was comprised of a minimum of seven years and six months, and a maximum of fifteen years.
Petitioner was arrested on December 23, 1985 and charged with aggravated assault (No. 8812-1051), on July 31, 1987 and charged with robbery (No. 8707-1680), on November 10, 1988 and charged with burglary (No. 8811-0274) and attempted rape (No. 8811-276), and on December 23, 1988 and charged with conspiracy (No. 8812-1050).
Petitioner also received sentences of seven and one-half to fifteen years for robbery (No. 8707-1680), six and one-half to fifteen years for aggravated assault (No. 8812-1051), five to ten years for conspiracy (No. 8812-50), and five to ten years for attempted rape (No. 8811-276). Petitioner received credits for pre-conviction time served for the robbery and aggravated assault conviction. Therefore, according to Respondents, the effective date for those sentences was earlier than the effective date for burglary.
On May 16, 1989, the Clerk of Quarter Sessions issued three letters to the Superintendent at SCI Graterford regarding crediting Petitioner with time served for the period while he was incarcerated in the Philadelphia Detention Center awaiting trial on his robbery, conspiracy, and burglary charges. Resp., Exs. 6-8. Petitioner was to receive credit for the time periods of July 3, 1987 to November 21, 1987 and September 20, 1988 to March 20, 1989 for his robbery charges (No. 8707-1680); for the time period of November 26, 1988 to March 20, 1989 for his conspiracy charge (No. 8812-1050); and for the time period of March 2, 1989 to March 20, 1989 for his burglary charge (No. 8811-0274).
Petitioner was released on parole on his unexpired sentences on August 16, 1999, after serving ten years, five months, and fourteen days in prison measured from the March 2, 1989 effective date for his convictions. Effective June 4, 2002, however, Petitioner was declared delinquent for technical parole violations, after spending two years, nine months, and eighteen days on parole. At the time this delinquency was declared, thirteen years, three months, and two days of Petitioner's maximum fifteen year sentence on his robbery conviction (No. 8707-1680) had expired. Thus, at the time that Petitioner was arrested and recommitted to prison with an effective return date of August 29, 2002, he had one year, eight months and twenty-eight days of his maximum fifteen year robbery sentence (No. 8707-1680) remaining unexpired.
This amount of time does not include the amount credited to Petitioner for time served while incarcerated in the Philadelphia Detention Center.
The Pennsylvania Board of Probation and Parole ("PBPP") recommitted Petitioner to state prison as a technical parole violator on October 3, 2002. At that time, the PBPP stated that Petitioner's unexpired term of incarceration was ten months and twenty-eight days. Later, however, the PBPP corrected and modified its order to recommit Petitioner for one year, eight months, twenty-eight days. Thus, measured from the August 29, 2002 effective return date, May 27, 2004 was listed as the new maximum date on Petitioner's fifteen year sentence on No. 8811-0274.
The PBPP contends that this was based on an error in calculations made by the Department of Corrections ("DOC").
The PBPP informed Petitioner on February 18, 2003 that it declined to take action on his administrative appeal from this correction, because it's action was based on the DOC's sentence calculation. Petitioner appealed the PBPP action to the Commonwealth Court on October 9, 2003. The Commonwealth Court dismissed his petition for review as untimely filed on October 14, 2003, because his final day to timely file a petition for review was March 20, 2003. See Pet.'s Prelim. Objs. to Ans., Ex. 1(b); Commonwealth Court No. 2225 C.D. 2003. Petitioner did not request review of the Commonwealth Court's determination in any state appellate court.
On December 11, 2003, two months after the Commonwealth Court dismissed his petition for review, Petitioner signed the instant Petition, and on December 15, 2003, it was docketed with this Court. The Honorable Clifford Scott Green referred it to this Court for preparation of a Report and Recommendation on January 8, 2004.
Petitioner alleges that his Fourth and Fourteenth Amendments were and are violated by (1) the PBPP added two months and twenty-five days to his maximum sentence, thereby changing his maximum date from May 2, 2003, to July 27, 2003; and (2) the Department of Corrections illegally computed and added an extra ten months to his maximum sentence and had the PBPP change his maximum sentence date from July 27, 2003 to May 27, 2004, which changed the sentence of the courts.
Respondents contend that Petitioner has failed to exhaust his state court remedies and has procedurally defaulted these claims, and that Petitioner's sentence was correct under Pennsylvania law and raises no federal constitutional concern. Respondents further contend that this Petition should be dismissed because the PBPP's decision does not implicate Petitioner's procedural or substantive due process rights.
II. DISCUSSION.
Petitioner was released on parole on August 16, 1999. On or about June 4, 2002, Petitioner became delinquent for 2 months and 25 days while on parole, and the PBPP placed a detainer on Petitioner. Petitioner was arrested 86 days later on August 29, 2002, and received a revocation parole hearing on September 9, 2002. At that hearing, Petitioner admitted his guilt for violations of parole condition No. 3a, failure to report with the parole supervision staff, and parole condition No. 7, failure to attend and actively participate in the PBPP Relapse Management Group. As a result, the PBPP notified Petitioner on October 11, 2002, that, as recorded on October 3, 2002, the PBPP rendered a decision that a delinquency time of 10 months and 25 days was added to his maximum sentence. Petitioner's recomputed parole violation maximum date then became July 27, 2003.
On January 13, 2003, the PBPP issued Petitioner another notice that, as recorded on January 7, 2003, the PBPP rendered a decision that it was modifying the recommit portion of the PBPP action on October 3, 2002 to read "Recommit to a state correctional institution as a technical parole violator to serve unexpired term — 1 year, 8 months, 28 days. Modify Parole Violation Max Date to Read: 05-27-04." See Mem. in Supp. Pet., Ex. 9. Petitioner filed an administrative appeal with the PBPP objecting to the January 13, 2003 decision. On February 18, 2003. Assistant Counsel for the PBPP issued correspondence to Petitioner stating:
From your correspondence, it appeals [sic] that your challenge is to the change in your original maximum expiration date from May 2, 2003 to March 2, 2004. Any question in that regard is not covered by the Board's regulations relating to administrative appeals but is rather the responsibility of the Department of Corrections. Gillespie v. Department of Corrections, 527 A.2d 1061 (Pa.Cmwlth. 1987), appeal denied, 540 A.2d 535 (Pa. 1988). Purely for your information, in the Board decision mailed October 11, 2002, the Board merely added 2 months and 25 days delinquent time and has now modified that action in accordance with the new information received from the Department of Corrections.
Accordingly, no further action will be taken on your correspondence.See Mem. in Supp. Pet., Ex. 10. Petitioner avers that the PBPP's changing of his legal maximum sentencing date after delinquency time is a violation of his Fourth Amendment right against illegal seizure, and his Eighth Amendment right against cruel and unusual punishment.
According to Respondents, the DOC "initially, and erroneously, applied the pretrial credits approved for No. 8707-1680 to all sentences by listing the effective date for all as May 2, 1988.See Ans., p. 3 (citing Dept. of Corrections, Sentence Status Summary, Form DC-16D, App. 9). In analyzing the break-down of Petitioner's time served from his maximum sentences, Respondents examine each crime for which Petitioner pled guilty: robbery (No. 8707-1680); aggravated assault (No. 8812-1051); and burglary (No. 8811-0274). Each sentence had a 15 year maximum, to be served concurrently. Respondents contend that, as a result of credits for time served by Petitioner prior to sentencing, the effective dates of the sentences on Petitioner's robbery and aggravated assault convictions were earlier than the effective date of the sentence on the burglary conviction. Therefore, Respondents contend that the burglary conviction set the maximum length of Petitioner's term. Whereas Petitioner received credit for 18 days on that conviction, he received credit for 10 months on the robbery conviction and credit for four months for pre- and post-detention on the conspiracy and aggravated assault convictions.
The maximum sentence on the conspiracy charge was 10 years.
Pennsylvania law provides that time credit on one sentence can only be given when it has not already been credited against another sentence.See 42 Pa. C.S.A. § 9760(4). In Brown v. Com., Dep't of Corr., 686 A.2d 919 (Pa.Cmwlth. 1996), the Pennsylvania Commonwealth Court held that a sentencing judge is precluded from ordering and the DOC is precluded from applying credit for the period of imprisonment for a second or subsequent conviction if the individual is already in prison under a sentence imposed for other offenses.Id. at 921-922. Respondents argue that the question of what credit, if any, Petitioner is due on his sentence is one of state law, and federal habeas courts do not sit to reexamine state court determinations on issues of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Petitioner alleges that the state court's failure to award him time credit amounts to a double jeopardy violation. Petitioner did not make this argument before the Commonwealth Court, and his failure to make this pertinent federal claim in state court precludes him now from raising this argument. See Duncan v. Henry, 513 U.S. 364 (1995). "To fairly present a claim, a petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." Keller v. Larkins, 89 F. Supp.2d 593, 598 (E.D. Pa. 2000), aff'd, 251 F.3d 408 (3d Cir.), cert. denied, 534 U.S. 973 (2001) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citations and internal punctuation omitted)). Petitioner does not explain how an alleged failure to correctly calculate a state sentence amounts to a double jeopardy violation.
Respondents contend that the due process clause does not apply in this situation and the Parole Board has not violated Petitioner's procedural due process rights because the Constitution does not, by itself, give a convicted person a liberty interest in parole that is protected by the Fourteenth Amendment. Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979) (finding discretionary parole a mere hope and the decision whether or not to grant parole did not involve fact issues, but the Board members' subjective predictions of applicant's future behavior); McCrery v. Mark, 823 F. Supp. 288, 293 (E.D. Pa. 1993).
The Greenholtz Court stated, "[t]here is no Constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."Greenholtz, 442 U.S. at 7.
In Henry v. Bello, No. 92-4341, 1994 WL 27320 (E.D. Pa. Feb. 1, 1994), a case brought pursuant to 42 U.S.C. § 1983, the Honorable Norma Shapiro of this Court stated that:
[t]he Constitution does not provide a general liberty interest in parole release. Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979); Saltzburg v. Fulcomer, 1990 WL 116264, at *3 (E.D. Pa. Aug. 2, 1990) (Shapiro, J.). A protected liberty interest may arise under state law if the law creates a legitimate expectation or entitlement to release or parole. However, the Pennsylvania Probation and Parole Act gives the parole board considerable discretion to decide whether to grant parole, 61 P.S. § 331.21; therefore, the Commonwealth has not created a liberty interest in parole. See McCrery v. Mark, 823 F. Supp. 288, 294 (E.D. Pa. 1993); Commonwealth v. Brittingham, 275 A.2d 83, 85 (Pa. 1971); Counts v. Commonwealth, Pa. Bd. of Prob. Parole, 487 A.2d 450, 453 (Pa.Commw. 1985). . . . Even though a state has not created a liberty interest in parole, a state may not exercise its discretion arbitrarily or for constitutionally impermissible reasons. Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980).Id. at *1-*2. Further, "[i]n Pennsylvania, `a parole eligibility date, usually set at the expiration of the prisoner's minimum sentence, does not vest any right to a grant of parole upon reaching that date.'" DeBrose v. Chesney, No. 95-6813, 1996 WL 4093, at *3 (E.D. Pa. Jan. 2, 1996) (quoting Reider v. Commonwealth, Pa. Bd. of Prob. Parole, 514 A.2d 967, 971 (Pa.Commw. 1986) andMcCrery, 823 F. Supp. at 294.
The United States Supreme Court has never applied substantive due process in the absence of a constitutionally protected life, liberty, or property interest. See, e.g., Reno v. Flores, 507 U.S. 292, 301-302 (1993); Planned Parenthood v. Casey, 505 U.S. 833, 846-854 (1992); Washington v. Harper, 494 U.S. 210, 220-223 (1990). The Supreme Court has held that Fourteenth Amendment due process applies only to protect defined life, liberty, or property interests. See Sandin v. Connor, 515 U.S. 472 (1995);Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 459-460 (1989);Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) (holding there was no liberty interest in commutation of life sentences and Connecticut statutes provided Board of Pardons with unfettered discretion).
Although states may create liberty interests protected by the Due Process Clause, these interests will:
be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, . . . nonetheless impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.Sandin, 515 U.S. at 484 (citations omitted). A decision for an imprisoned individual to remain in prison for the duration of his sentence does not impose an atypical hardship on the prisoner since prison sentences are ordinarily served in prison. Further, even if continued imprisonment under a prison sentence is considered atypical, a prisoner has no state-created constitutionally protected liberty interest in parole unless state laws require parole or reparole upon proof of specific substantive criteria.Greenholtz, 442 U.S. at 11-12; Ky. Dep't of Corr., 490 U.S. at 461-463 (citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). Before the Constitution protects an interest defined by state law, the claimant must have a legitimate claim of entitlement to it. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
The Pennsylvania Probation and Parole Act does not create a liberty interest in parole which would be protected under the federal Constitution because the PBPP has complete discretion to grant or deny parole without constraint from any particularized substantive predicates.See 61 Pa. C.S.A. § 331.21; McCrery, 823 F. Supp. at 293. In Jago v. Van Curen, 454 U.S. 14 (1981), the Supreme Court held that a state parole board's decision to release a prisoner on parole did not create a liberty interest and that the board could rescind its decision without providing the prisoner due process. In fact, courts in Pennsylvania have held that the PBPP has such complete discretion with respect to parole, that a prisoner has no constitutionally protected interest in the grant or denial of parole and may not even appeal an unfavorable decision. See Reider, 514 A.2d at 971; King v. Bd. of Prob. Parole, 534 A.2d 150, 151 (Pa.Commw. 1987). Given this discretion, and the PBPP's explanation of the seemingly additional time attached to Petitioner's sentence, Petitioner's claims in his Petition must be denied.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of May, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED with prejudice and DISMISSED. There are no grounds upon which to issue a certificate of appealability.
BY THE COURT: