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ANDERSON v. BOARD OF PROBATION & PAROLE

United States District Court, E.D. Pennsylvania


January 8, 2004.

BERNARD TYISHAWN ANDERSON
v.
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' imprisonment.

  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 Graterford. Page 2

  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 conviction.

  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. Page 3 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 constitutional issues).

  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 Page 4 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 policy.

 

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. Page 5

  Therefore, I make the following:

RECOMMENDATION
  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.


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