United States District Court, E.D. Pennsylvania
January 8, 2004.
BERNARD TYISHAWN ANDERSON
BOARD OF PROBATION & PAROLE, et al.
The opinion of the court was delivered by: JACOB HART, Magistrate Judge
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to
28 U.S.C. § 2254, by an individual currently incarcerated at the State
Correctional Institution at Graterford, Pennsylvania. For the reasons
that follow, I recommend that the petition be denied.
FACTS AND PROCEDURAL HISTORY:
On September 22, 2000, Anderson pleaded guilty to possession with
intent to deliver cocaine. He was sentenced to one to three years'
imprisonment. While serving his sentence at the Northampton County
Prison, Anderson escaped. He was captured nearly a year later. On April
23, 2002, Anderson pleaded guilty to the charge of escape and was
sentenced by the Honorable Robert A. Freedberg to one to two years'
imprisonment to be served consecutively to the sentence imposed for the
drug offense. When aggregated, Anderson's sentence was 2-5 years'
On July 11, 2002, Todd L. Buskirk, Warden of the Northampton County
Prison, filed a Petition for Transfer, requesting that Anderson be
transferred from County custody to state custody, noting that the reason
for the transfer was the aggregated sentence. On August 13, 2002, the
Department of Corrections' Deputy Commissioner approved the transfer and
Anderson was transferred to SCI Camp Hill. He is now incarcerated at SCI
In his petition, Anderson claims: (1) that the Department of
Corrections illegally aggregated his sentences; (2) he should not have
been transferred from Northampton Prison; and (3) the Parole Board
violated his rights to due process by failing to review him for parole
eligibility at the conclusion of his minimum sentence on the first
Initially, the Attorney General's Office argues that the claims that
Anderson presents are not exhausted. Although we agree,*fn1 we will
proceed to address Anderson's claims because they are without merit. "An
application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State." 28 U.S.C. § 2254(b)(2).
Aggregation of the Sentences
Anderson first claims that the state officials unlawfully aggregated
his two sentences. Pennsylvania law requires the aggregation of multiple
sentences. "In Gillespie v. Commonwealth, [106 Pa.Commw. 500, 527 A.2d 1061
(1987)], the Commonwealth Court held that [42 Pa.C.S.A.] § 9757 requires
aggregation of the minimum and maximum sentences of all sentences imposed
to be served consecutively even where they are imposed by different
judges in different counties on different days." Commonwealth v. Harris,
1991 WL 1011094 (Pa.Com.Pl.
Dec. 13, 1991). Based on Pennsylvania law, Anderson's two sentences, 1-2
years' and 1-3 years', were properly aggregated to a sentence of 2 5
years' imprisonment. The Third Circuit has held that the aggregation of
the minimum and maximum sentences does not present a constitutional
issue. "Construing the Act [providing for the aggregation of sentences]
. . . we can discern no issue of constitutional dimension which is
essential to Federal habeas corpus relief." United States ex rel. Monk
v. Maroney, 378 F.2d 55 (3d Cir. 1967). Thus, Anderson's aggregation
issue does not provide a basis for habeas corpus relief. See Estelle v.
McGuire, 502 U.S. 62, 68 (1991)(habeas review is limited to
Anderson's Transfer to State Custody
Next, Anderson argues that his transfer from Northampton County Prison
to a State Correctional Institution was unlawful. Again, Pennsylvania law
permits such a transfer. See 61 P.S. § 72 (DOC is permitted to transfer
inmates from county to state custody at the request of the county
prison). Here, the warden of Northampton County Prison requested that
Anderson be transferred to state custody based on the length of his
sentence after aggregation. Since Anderson does not have a constitutional
right to confinement in a certain facility, this claim does not provide a
basis for habeas relief. See Yi v. Federal Bureau of Prisons, 2003 WL
21321411 (E.D. Pa. Jun. 3, 2003)(citing Olim v. Wakinekona, 461 U.S. 238,
246 (1983)("an interstate prison transfer . . . does not deprive an
inmate of any liberty interest protected by the Due Process Clause")).
Failure to Consider Anderson for Parole
____Finally, Anderson argues that the Parole Board failed to timely
consider him for parole at the expiration of his minimum sentence on the
drug conviction. We first note that Anderson has
no protected liberty interest in parole. See Weaver v. Pennsylvania Board
of Probation and Parole, 688 A.2d 766, 770 (Pa.Commw. 1997). However, the
due process clause does protect against capricious decisionmaking." Block
v. Potter, 631 F.2d 233, 236 (3d Cir. 1980). Accordingly, a state statute
cannot permit arbitrary denials of parole based on impermissible criteria
such as race, political beliefs, religion, or totally frivolous criteria
with no rational relationship to the purpose of parole such as the color
of one's eyes, the school one attended, or the style of one's clothing.
Block, at 236, n.2.
Here, Anderson is not complaining that he was denied parole. Rather, he
claims that he was not even permitted to apply for parole until he
completed serving his aggregated minimum sentence. There is nothing
arbitrary about Pennsylvania's aggregation rules. They are based on sound
The purpose of [the aggregation rules is] to allow
corrections authorities to combine multiple
consecutive sentences as a single sentence for
purposes of parole eligibility and to preclude the
necessity of prisoners having to apply for
constructive parole at the expiration f each of their
various minimum terms and relieved the Board from
having to act on those multiple parole applications.
Jamieson v. Commonwealth of Pennsylvania Board of Probation and Parole,
90 Pa. Commw. 318, 330(1985).
As previously discussed, Andersen's sentences were properly
aggregated. Therefore, he was not eligible for consideration for parole
until April 14, 2003. On May 16, 2003, after considering Anderson's
parole application, the Parole Board denied him parole based on the
recommendation of the Department of Corrections, the need to complete
additional institutional programs, and reported misconducts. Notice of
Board Decision, 5/16/03. Anderson makes no claim that this denial of
parole violated due process.
Therefore, I make the following:
AND NOW, this 8th day of January, 2004, IT IS RESPECTFULLY RECOMMENDED
that the petition for writ of habeas corpus be DENIED. There has been no
substantial showing of the denial of a constitutional right requiring the
issuance of a certificate of appealability.