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 Waymart, Pennsylvania. For the reasons that
follow, I recommend that the petition be denied.
McElwee presents four claims for review. In each he complains that his
sentences were unlawfully aggregated by the Department of Corrections,
such that he is now serving time on an expired sentence. In response, the
Attorney General argues that the claims are unexhausted and, in any
event, do not provide a basis for habeas corpus relief.
Although we agree that the claims are unexhausted,*fn1 we find it is
appropriate to address McElwee's claims. See 28 U.S.C. § 2254(b)(2)(the
district court may deny a petition on its merits despite the petitioner's
failure to exhaust his claims). It appears that McElwee is confusing the
concept of consecutive and concurrent sentences. It is clear that when
the Honorable Richard Lowe, Court of Common Pleas of Montgomery County,
sentenced McElwee, he imposed consecutive sentences, meaning that the
sentences were not to be served simultaneously. Black's Law Dictionary,
7th ed., at 1367. McElwee received a sentence of 1-7 years'
imprisonment for arson and 2-5 years' for a burglary conviction. (N.T.
The Department of Corrections properly aggregated these sentences
pursuant to 42 Pa.C.S.A. § 9757. "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, McElwee's two sentences, 1-7
years' and 2-5 years', were properly aggregated to a sentence of 3-12
Moreover, 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, McElwee'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
To the extent McElwee claims that his Eighth Amendment rights
prohibiting cruel and unusual punishment have been violated by
incarceration beyond his maximum sentence, the claim is meritless. On
June 22, 1994, McElwee received an aggregate sentence of 3-12 years' imprisonment. At this point, McElwee has yet to reach his original
maximum date, let alone the adjusted maximum date which was caluclated
after McElwee violated parole.*fn2 His maximum date is now July 20,
2007. Therefore, McElwee's claim that he has been imprisoned beyond his
maximum date is meritless.
Therefore, I make the following:
AND NOW, this 14th day of April, 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. ORDER
AND NOW, this ___ day of ___, 2004, upon careful and independent
consideration of the petition for writ of habeas corpus, and after review
of the Report and Recommendation of United States Magistrate Judge Jacob
P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is ...