was given no credit for the time at liberty while on parole. Consequently, the expiration date of his maximum sentence was extended for three years, seven months and 8 days, until March 19, 1979. On August 18, 1976, petitioner was reparoled from his original sentence to serve the new sentence imposed in Monroe County.
Petitioner contends that in taking away his "street time" the Board unlawfully extended his maximum sentence in violation of his rights under the Fifth and Fourteenth Amendments. Section 331.21a(a) of Title 61 of Purdon's Statutes Annotated, directing the Pennsylvania Board of Parole to give a recommitted, convicted parole violator no credit for time spent on liberty while on parole, has withstood numerous constitutional challenges in the federal courts. Section 331.21a(a) has been held not to violate the due process and equal protection guarantees of the federal constitution,
and not to violate the constitutional prohibitions against double jeopardy,
bills of attainder,
cruel and unusual punishment
or ex post facto laws.
See also, United States ex rel. Heacock v. Myers, 251 F. Supp. 773 (E.D. Pa. 1966), aff'd per curiam, 367 F.2d 583 (3d Cir. 1966), cert. denied, 386 U.S. 925, 87 S. Ct. 900, 17 L. Ed. 2d 797 (1967); United States ex rel. Brown v. Pennsylvania Board of Parole, 309 F. Supp. 886 (E.D. Pa. 1970); Gomori v. Maroney, 196 F. Supp. 190 (W.D. Pa. 1961), aff'd, 300 F.2d 755 (3d Cir. 1962). In view of the foregoing authorities, the Court finds petitioner's contention without merit.
Petitioner also challenges the Parole Board's jurisdiction to recommit him as a convicted parole violator. The facts of the instant case raise two jurisdictional issues, the most striking of which is the Board's authority to declare petitioner delinquent on parole. As previously noted, the Board did not administratively declare petitioner delinquent on parole until August 20, 1974, two days after the expiration date of his maximum sentence (August 18, 1974). The Board's jurisdiction to do so is crucial to petitioner's case, for if the Board had no such authority, then petitioner would not have been "delinquent on parole" within the meaning of 61 P.S. § 331.21a(a) when he committed the robbery in Monroe County on August 25, 1974, and therefore, would not be subject to being recommitted as a convicted parole violator under the provisions of 61 P.S. § 331.21a(a).
Respondent's authority to declare petitioner delinquent on parole after his maximum term had expired on August 18, 1974, presents an arguable issue for petitioner to present to the state courts. However, it does not present any grounds for relief in this action. The issue was not raised in petitioner's complaint in mandamus before the Commonwealth Court, nor was it addressed in respondent's brief in support of its preliminary objections to petitioner's complaint. Indeed, it does not appear that the relevant facts were even presented to the Commonwealth Court.
Consequently, petitioner has not exhausted state remedies with respect to the issue, see Picard v. Connor, supra (federal issue must have been "fairly presented to the state courts"); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (same); United States ex rel. Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977), and the Court will not address it.
Assuming without deciding that petitioner's maximum sentence was properly extended from August 18, 1974 to December 13, 1974, a second jurisdictional issue is raised: whether petitioner was a "parolee under the jurisdiction of the Pennsylvania Board of Parole," within the meaning of 61 P.S. § 331.21a(a), after December 13, 1974. Petitioner contends that he was not. State remedies have been exhausted with respect to this issue. See page 295 supra.
Under 61 P.S. § 331.21a(a), respondent has the discretion to recommit as a convicted parole violator any parolee under its jurisdiction who, while on parole or delinquent on parole, commits a crime punishable by imprisonment and is thereafter convicted of that crime. See note 7 supra. Recommitment is dependent upon the parolee's conviction for the crime committed while on parole. Conviction may occur long after the expiration of a parolee's maximum term. Consequently, Pennsylvania courts have held that if a parolee commits a crime on parole and is thereafter convicted of that crime, he may be recommitted under 61 P.S. § 331.21a(a) even if he is not convicted until after the expiration of his maximum term. Commonwealth ex rel. Hall v. Board of Probation and Parole, 3 Pa. Cmwlth. 435 (1975).
In particular, the Commonwealth Court held that the Board loses the right to legal custody of a parolee upon the expiration of his maximum term, but that it reacquires the right to legal custody sua sponte upon the parolee's conviction for the crime committed while on parole. Id. at 442-43. One of the policies underlying the decision is that a contrary holding would encourage parolees to delay their trials until after the expiration date of their maximum terms in an effort to avoid recommitment. Id. at 444.
The Commonwealth Court further held that the Board's administrative action in lifting its detainer on the expiration date of a parolee's maximum sentence was irrelevant to its power to recommit a parolee after his conviction. Id. at 443. This latter holding means that the Board does not have to take any administrative action within the parolee's maximum term in order to retain "jurisdiction" over him or to recommit him later as a convicted parole violator; it simply has to await the parolee's conviction, and thereafter, to act with some reasonable degree of promptness to exercise its reacquired jurisdiction. Id. at 446-47.
Under Hall, the Board reacquired "jurisdiction," i.e., the right to legal custody, of petitioner on January 9, 1975, the date on which he was convicted of the robbery in Monroe County. Therefore, under Hall, the Board had "jurisdiction" to relodge its detainer on January 21, 1975, to give petitioner a revocation hearing on February 27, 1975, and to recommit him on March 11, 1975.
The Commonwealth Court's determination that the Pennsylvania Board of Probation and Parole automatically reacquires jurisdiction of a parolee upon the parolee's conviction for crime committed while on parole and regardless of the Board's prior administrative action in lifting its detainer does not appear to raise any constitutional issue. Rather, the jurisdiction of the Pennsylvania Board of Probation and Parole appears to be a matter of state law. Since it is not the province of a federal habeas court to re-examine questions of state law, Rose v. Hodges, 423 U.S. 19, 22, 46 L. Ed. 2d 162, 96 S. Ct. 175 (1975), and since the Commonwealth Court's determination does not appear to be an "obvious subterfuge to evade consideration of a federal issue," Hallowell v. Keve, 555 F.2d 103, 107 (3d Cir. 1977), this Court will not review the matter.
Accordingly, petitioner is not entitled to habeas corpus relief. The respondent's motion to dismiss will be granted.
Chief Judge Middle District of Pennsylvania
Now, this 22rd day of August, 1977, in accordance with the memorandum filed herewith, it is ordered that respondent's motion to dismiss is granted.
Chief Judge Middle District of Pennsylvania