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UNITED STATES EX REL. MCCLURE v. PATTON

June 26, 1985

UNITED STATES OF AMERICA ex rel. EUGENE McCLURE
v.
ERNEST PATTON, et al.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Petitioner Eugene McClure has, through counsel, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the time this action was filed the petitioner was incarcerated in the State Correctional Institution at Camp Hill, Pennsylvania. The petitioner alleges that in 1981, while he was on parole in connection with a prison sentence imposed in 1977, the Pennsylvania Commonwealth Board of Probation and Parole ("the Board") declared him a "technical" parole violator for possessing a firearm in violation of the conditions of his parole, and recommitted him to serve twelve months "back time" on his original sentence. Subsequently, following his conviction in 1982 for weapons offenses which arose out of his possession of the same firearm, the Board declared him a "convicted" parole violator, and ordered that he serve an additional eighteen months on his original sentence. The petitioner contends that the Board's action in adjudging him a convicted parole violator, and ordering him to serve an additional eighteen months on his original sentence for the same conduct for which he was recommitted as a technical parole violator, violated his constitutional rights under the double jeopardy clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment. United States Magistrate Peter B. Scuderi has issued a report with a recommendation that the petition for a writ of habeas corpus be denied. The petitioner filed timely objections to the report and recommendation, and this Court has undertaken a de novo review of the matter. For the reasons that follow, the Court has determined that the petition for a writ of habeas corpus will be denied.

 Facts

 The facts in this case are not disputed, and indeed the matter is before the Court on cross-motions for judgment on the pleadings. On September 12, 1977, following his conviction for robbery in the Court of Common Pleas, petitioner was sentenced to a term of not less than three nor more than seven years for robbery. On June 9, 1980, petitioner was paroled by the Board from this sentence. Condition No. 9 of his approved parole plan was his agreement not to own or possess any firearm, deadly weapon, or offensive weapon. Condition No. 9 is a standard condition of parole. 37 Pa. Code § 63.4(5)(ii).

 On April 20, 1981, petitioner was arrested on charges of violating the Uniform Firearms Act, carrying a firearm without a license, carrying a firearm on a public street, and possession of an instrument of a crime. On June 25, 1981, petitioner was given a preliminary hearing by the Board on the charge of violating Condition No. 9 of his parole. A violation of parole hearing was held on August 25, 1981. In a decision dated September 18, 1981, the Board found that the petitioner was in violation of Condition No. 9 of his parole, and recommitted him to serve twelve months on his original sentence as a technical parole violator. Although under 61 Pa. Stat. Ann. § 331.21a(b) the Board had the power to recommit petitioner for the entire unexpired term of his sentence (approximately 46 months), see United States ex rel. Lawson v. Cavell, 425 F.2d 1350, 1352 (3d Cir. 1970), in this case the twelve month period of recommitment was within the six-to-twelve month "presumptive range" for recommitment on a violation of the "no firearms" condition of parole. See 37 Pa. Code § 75.4. Furthermore, petitioner's recommitment as a technical parole violator did not result in the loss of "street-time" credit (towards completion of his original sentence) with respect to the time he had spent on parole prior to his arrest on the weapons offenses. 61 Pa. Stat. Ann § 331.21a(b).

 On January 7, 1982 petitioner was found guilty in the Court of Common Pleas of Philadelphia County on the weapons charges relating to his possession of the same firearm (at the same time) which formed the basis for the Board's prior recommitment action. Following that conviction, a second revocation of parole hearing was held. On May 25, 1982, the Board entered an order in which it "reaffirmed" its recommitment order of September 18, 1981, and recommitted petitioner, as a convicted parole violator, to serve eighteen months (in addition to the twelve months already ordered) on the basis of the conviction on the firearms offenses. Pursuant to 61 Pa. Stat. Ann. § 331.21a(a), the petitioner, as a convicted parole violator, was deprived of his "street time" credit towards his original sentence.

 At the second revocation of parole hearing, petitioner argued unsuccessfully that the imposition of additional recommitment time for the conviction would violate petitioner's double jeopardy and due process rights. Petitioner appealed the Board's decision to the Pennsylvania Commonwealth Court, which rejected his double jeopardy and due process arguments in a published decision. McClure v. Commonwealth of Pennsylvania, Board of Probation and Parole, 75 Pa. Cmwlth. 176, 461 A.2d 645 (1983). The Pennsylvania Supreme Court denied allocatur. Thus the petitioner has exhausted his available state remedies. 28 U.S.C. § 2254(b).

 Mootness

 Before proceeding to the merits of petitioner's claims the Court has, sua sponte, considered whether this action has become moot due to petitioner's reparole from prison. At the time the action was filed the petitioner was in custody, but during the pendency of the case (before briefing on the objection to the Magistrate's report was completed) the petitioner was reparoled. His maximum sentence expires on July 18, 1985.

 It is clear that the "in custody" requirement of 28 U.S.C. § 2241 extends to a habeas petitioner who, although not incarcerated, is under the "custody" of a parole board, because the conditions of parole involve "significant restraints" upon liberty. Jones v. Cunningham, 371 U.S. 236, 242, 83 S. Ct. 373, 376-77, 9 L. Ed. 2d 285 (1963). The Supreme Court has also held that final unconditional release from custody does not moot federal habeas review of the underlying conviction (where the habeas petition was filed while the petitioner was in custody) because of the substantial "disabilities or burdens [which] may flow from" petitioner's conviction. Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S. Ct. 1556, 1559, 20 L. Ed. 2d 554 (1968), quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S. Ct. 224, 230, 91 L. Ed. 196 (1946). Finally, the Pennsylvania Supreme Court recently has held that the subsequent reparole of a petitioner seeking review of the Board's revocation of his parole does not moot his petition for review, at least until his original maximum sentence expires, because "surely, the determination that petitioner was a parole violator may have future consequences for him" for the duration of his parole period. Johnson v. Commonwealth of Pennsylvania, Board of Probation and Parole, 505 Pa. 569, 571, 482 A.2d 235, 236 (1984).

 In the present case the petitioner is presently on parole, and he challenges the Board's decision which recommitted him as a convicted parole violator in 1982. The Court will assume that the Board's recommitment of the petitioner as a convicted parole violator in 1982 may have "future consequences" for him, at least until the expiration of his original sentence, and therefore has determined that the petition for a writ of habeas corpus is not moot.

 Double Jeopardy

 The double jeopardy clause of the Fifth Amendment (made applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969)) provides that no person shall "be subject for the same offense to be twice put ...


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