Opinion
Civil Action 20-cv-1304
09-18-2023
CHRISTOPHER L. CASH, Petitioner, v. ERIC TICE; and THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondents.
Hon. Arthur J. Schwab United States District Judge
REPORT AND RECOMMENDATION RE: ECF NO. 3
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 3, be denied. It is further recommended that a certificate of appealability be denied.
II. REPORT
Christopher Cash (“Petitioner”) was, at the time of filing, a state prisoner held at the State Correctional Institution at Somerset (“SCI-Somerset”) in Somerset, Pennsylvania. ECF No. 3-2 at 1. In the Petition, he challenges the decision of Respondent The Pennsylvania Board of Probation and Parole (the “Board”) to recommit him as a convicted parole violator and recalculate his maximum sentence date. ECF No. 3 at 5.
A. Relevant Background
While the briefing of this matter is not entirely clear, it appears that Petitioner was sentenced to 4 to 8 years of incarceration by the Court of Common Pleas of Allegheny County in Commonwealth v. Cash, No. CP-02-CR-2745-2009. ECF No. 7-1 at 5. Petitioner was released on parole from that conviction on May 3, 2016, and his maximum date of sentence of April 17, 2018. Id. As of the date of his release, Petitioner had 714 days to serve on that sentence.
While on parole, Petitioner was arrested on new charges on February 23, 2018, in Commonwealth v. Cash, No. CP-02-CR-3511-2018. Id. at 8. It appears that Petitioner did not post bail in that case initially, but was released on his own recognizance with respect to those charges on March 8, 2018. Cash v. Pennsylvania Parole Bd., No. 92 CD 2021, 2021 WL 4143329, at *1 (Pa. Cmmw. Ct. Sep. 13, 2021). However, Petitioner remained confined on the Board's detainer until April 17, 2018, when the Board cancelled its detainer upon the expiration of Petitioner's maximum sentence in No. CP-02-CR-2745-2009. Id.
Petitioner pleaded guilty to the charges in No. CP-02-CR-3511-2018 on January 22, 2020, and was sentenced to 21/2 to 5 years' incarceration, followed by a year of probation in that case. ECF No. 7-1 at 10-11.
On June 19, 2020, the Board recommitted Petitioner as a convicted parole violator to serve 1 year, 10 months, and five days of his sentence in No. CP-02-CR-2745-2009, with no credit for time at liberty. Id. at 32-32. See also Cash, 2021 WL 4143329, at *2. This resulted in a new maximum date at No. CP-02-CR-2745-2009 of February 4, 2022. ECF No. 7-1 at 35. See also Cash, 2021 WL 4143329, at *2. It appears that the Board's custody of Petitioner did not begin until April 1, 2020. ECF No. 7-1 at 35. See also Cash, 2021 WL 4143329, at *2.
This Court received the instant Petition on September 2, 2020. ECF No. 1. The Petition and supporting brief were formally filed on October 6, 2020. ECF Nos. 3 and 4. In the Petition, Petitioner argues that the Board “violated the Substantive Due Process Clause by recommitting Petitioner after he served the maximum sentence originally imposed[.]” ECF No. 3 at 5. See also ECF No. 4 at 3.
The Board answered the Petition on December 18, 2020. ECF No. 7. Despite being granted an extension of time to file a traverse, ECF No. 13, Petitioner failed to do so. The Petition is ripe for consideration.
B. Discussion
A petition pursuant to 28 U.S.C. § 2254 is the proper statutory section to invoke when challenging a parole decision. However, claims are limited to those instances when the petitioner “challenge[s] the very fact or duration of the confinement itself.” Learner v. Fauver, 288 F.3d 532, 541 (3d Cir. 2002); Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001).
1. Exhaustion
All claims that a petitioner in state custody attempts to present to a federal court for habeas corpus review must have been exhausted in the state courts. 28 U.S.C. § 2254(b)(1)(A). This provision requires that the petitioner give the state courts a fair opportunity to review his allegations of constitutional error before seeking relief in the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). Pursuant to the federal habeas statute, a petitioner has not exhausted the remedies available in the courts of the state “if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). The United States Supreme Court has held that this requires that state prisoners “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The burden of proving exhaustion of all available state remedies lies with the petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
When considering exhaustion in the context of a parole violator in Pennsylvania, as is the case here, a petitioner must first challenge the Board's decision to recommit him as a parole violator by filing an administrative appeal to the Board itself within thirty days of the mailing date of the Board's order. 61 Pa. C.S.A. § 6113(d); 37 Pa. Code § 73.1(a). Thereafter, the petitioner must follow that administrative appeal with an appeal to the Pennsylvania Commonwealth Court. See 42 Pa. C.S.A. § 763(a); see also Bronson v. Com. Bd. of Probation and Parole, 421 A.2d 1021, 1025-26 (Pa. 1980) (concluding that the Commonwealth Court had jurisdiction over the appeal from a parole revocation decision made by the Board).
If a petitioner is unsuccessful at the Commonwealth Court, he then must seek allowance of appeal from the Pennsylvania Supreme Court. 42 Pa. C.S.A. § 724; see also McMahon v. Pennsylvania Bd. of Probation and Parole, 470 A.2d 1337 (Pa. 1983). A petitioner's claims are not deemed exhausted unless and until he seeks review from the Pennsylvania Supreme Court. Williams v. Wynder, 232 Fed.Appx. 177, 181 (3d Cir. 2007) (holding that the petitioner was required to exhaust his available state remedies by filing a petition for allowance of appeal in the Pennsylvania Supreme Court following the Commonwealth Court's adverse decision).
In this case, Petitioner has not alleged that he satisfied the exhaustion requirements either in the Petition or his supporting brief. To the contrary, he argues that he is excused from the exhaustion requirement because he is not asserting an ex post facto violation. ECF No. 3 at 11; ECF No. 4 at 1. Petitioner cites to Defoy v. McCoullough, 393 F.3d 439, 445 (3d Cir. 2005), for support of this contention. However, the continuing validity of Defoy has been called into question, see, e.g., Bradley v. Wingard, No. 15-cv-235J, 2017 WL 11476608, at *2 (W.D. Pa. Oct. 12, 2017), report and recommendation adopted, 2018 WL 10150909 (W.D. Pa. Sept. 5, 2018). Further, Defoy applies to decisions to deny parole, not those recommitting a convicted parole violator, and does not apply to this case. Defoy, 393 F.3d at 445
While not briefed or even disclosed by the parties, it appears that Petitioner did, in fact, seek an administrative appeal. When unsuccessful, he appears to have filed a petition for review with the Commonwealth Court. Cash, 2021 WL 4143329, at *1. It does not appear that Petitioner's sole constitutional claim in the present federal habeas Petition - that the Board's recommitment of Petitioner violated substantive due process - was presented to the Commonwealth Court. Id. at *3-5. There is no record that Petitioner sought allocatur from the Pennsylvania Supreme Court.
Because Petitioner's claim has no merit, and it is more efficient for the Court to deny them for that reason, the Court will not address the issue of exhaustion further. Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) (a federal court “may bypass the exhaustion issue altogether should [it] decide that the petitioner's habeas claim fails on the merits”). See also 28 U.S.C. § 2254(b)(2).
2. Petitioner's claims lack merit.
Under Pennsylvania law, parolees who violate their parole by being convicted of a crime which was committed by the parolee while on parole are considered a “convicted parole violators.” Any time spent at liberty on parole prior to the second conviction is added back to the parolee's original sentence, and the parolee may be required to serve that amount of time in prison as “backtime.” Strait v. Pennsylvania Bd. of Prob. & Parole, No. 580 C.D. 2015,2015 WL 6468544, at *4 (Pa. Commw. Ct. Oct. 27, 2015) (“[c]onsequently when a parolee is recommitted due to criminal conviction, his maximum sentence date may be extended to account for all street-time, regardless of good or delinquent standing.”). See McCreary v. Doe, No. 15-1634, 2016 WL 1506204, at *1 (W.D. Pa. Mar. 4, 2016), report and recommendation adopted, 2016 WL 1530008 (W.D. Pa. Apr. 14, 2016). See also Galloway v. Pennsylvania Prob. & Parole Bd., No. 20-361, 2020 WL 8817618, at *4-5 (W.D. Pa. Sept. 16, 2020) (internal citations omitted).
The version of Section 6138 of the Pennsylvania Prisons and Parole Code in effect at the time of Petitioner's recommitment specifically authorizes the Board to recalculate the maximum sentence date for convicted parole violations:
(1) A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.See 61 Pa. C.S.A. § 6138(a)(1) (2020) (emphasis added). See also Watts v. Mooney, No. CV 16188, 2016 WL 3041863, at *6 (E.D. Pa. May 26, 2016) (same). For decades, this statute has been recognized as raising no federal constitutional issue. United States ex rel. Heacock v. Myers, 367 F.2d 583 (3d Cir. 1966) (expressing “complete accord” and affirming opinion of district court in United States ex rel. Heacock v. Myers, 251 F.Supp. 773, 774 (E.D. Pa. 1966) (“[n]o [federal] constitutional question is involved in the Parole Board's failure to give relator credit for time on parole and its adjustment of the expiration date of his new maximum.”)). See also Rivera v. Pennsylvania Bd. of Prob. & Parole, No. 12- 1169, 2013 WL 5947728, at *6 (M.D. Pa. Nov. 5, 2013) (citing cases recognizing the constitutionality of Pennsylvania's parole statute).
In the instant matter, it is undisputed that Petitioner was convicted of various offenses at No. CP-02-CR-3511-2018 on January 22, 2020, and that these offenses occurred while Petitioner was on parole for his conviction at No. CP-02-CR-2745-2009.
Petitioner's “sentence” for his criminal case at No. CP-02-CR-2745-2009 was the maximum imposed by the Court of Common Pleas of Allegheny County - four to eight years of incarceration. See also Galloway, 2020 WL 8817618, at *5 (“Petitioner's sentence of 5 to 10 years imposed by Judge Bell is 5 to 10 years of incarceration, not time at liberty on parole. Until Petitioner serves 10 years of incarceration or a combination of years of incarceration plus successful time at liberty on parole ... he has not served his judicially imposed sentence of incarceration and, therefore, the Board is not acting in a judicial power but only within its statutory power when it recalculates his sentence maximum date.”).
On the date of Petitioner's release from confinement on May 3, 2016, he still had 714 days to serve on his maximum sentence of confinement. After his conviction at No. CP-02-CR-3511-2018, Petitioner was recommitted as a convicted parole violator for 1 year, 10 months and 5 days, which began on April 1,2020, when he became available for custody by the Board. ECF No. 7-1 at 35.
Petitioner has failed to demonstrate that his state custody due to the revocation of his parole and recalculation of his sentence beyond his original maximum date rises to the level of a “violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. Accordingly, the Petition should be denied.
3. Certificate of appealability
A certificate of appealability should be denied because jurists of reason would not find it debatable whether Petitioner's claims unexhausted and meritless. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000).
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that the Petition. ECF No. 3, be denied. It is further recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187,193 n. 7 (3d Cir. 2011).
Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.