United States District Court, E.D. Pennsylvania
July 15, 2004.
KENNETH K. KYLER, 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 Huntingdon,
Pennsylvania. For the reasons that follow, I recommend that the
petition be denied.
On August 20, 1973, Seville was sentenced to 8-20 years'
imprisonment for second degree murder. In his habeas petition,
Seville complains that he has completed serving the sentence, but
has not yet been released from prison, resulting in his
incarceration without due process of law and in violation of the
Equal Protection Clause. In response, the Attorney General argues
that the claim is unexhausted because Seville has failed to
appeal in the state courts. Alternatively, the Attorney General
argues that the petition is without merit because Seville has
failed to reach his maximum sentence date.
Ordinarily, the federal court will not consider a petition for
habeas corpus unless the petitioner has complied with the
exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). This
requires the petitioner to fairly present his claims to the state
courts to allow them the "initial opportunity to pass upon and
correct" alleged violations of his constitutional rights. Picard
v. Connor, 404 U.S. 270, 275 (1971) (citing Wilwording v.
Swenson, 404 U.S. 249, 250 (1971)). However, the federal court may deny a petition on its merits
notwithstanding the petitioner's failure to exhaust state court
remedies. 28 U.S.C. § 2254(b)(2). Because we find that Seville's
petition is meritless, we will proceed to address the merits of
In his petition, Seville explains that he began serving his
sentence on August 20, 1973. According to Seville, he absconded
from parole on November 5, 1992 and was returned to prison on
October 17, 2002, and has remained there since the time of his
re-incarceration. Thus, according to Seville's calculation, he
had already served over 19 years and 2 months prior to his parole
in November 5, 1992. He claims his maximum sentence expired on
August 20, 1973, 20 years after he began serving it, or September
20, 2003, ten months after his arrest on October 17, 2002.
(Petition, at ¶ 12(a)).
The problem with Seville's argument is that it fails to take
into consideration the prior periods of parole, for which he did
not receive credit because he violated the terms of his release.
The records provided by the Attorney General establish that
Seville was paroled on August 20, 1981. (Order to Release on
Parole, 8/20/81). He violated his parole and was returned to
custody on May 29, 1987. Because his violation was a technical
parole violation, rather than a conviction for a separate crime,
his maximum date remained August 20, 1993. (Notice of Board
Seville was reparoled on May 28, 1988. (Order to Release on
Parole, 4/1/98). He was rearrested on August 25, 1988. He was
subsequently found guilty of terroristic threats in the Court of
Common Pleas. Commonwealth v. Seville, 88-11-951. As a result
of the conviction, the Parole Board revoked his parole on January
31, 1990. (Notice of Board Decision, 2/21/90). If a person
commits a crime while on parole, and is recommitted as a
convicted parole violator, he is not entitled to any credit for time he was on parole. 61
P.S. § 331.21a(a). Thus, Seville lost credit for all the time he
had spent on parole, the 5 years and 9 months he had been on
parole from 1981-1987, and the three months he was released on
parole in 1989. His maximum date was reset from August 20, 1993,
to September 2, 1999. (Notice of Board Decision, 2/21/90).
On March 7, 1990, Seville was again paroled. He absconded on
November 5, 1991.*fn1 (Notice of Board Action, 3/3/92). He
was returned to custody on October 17, 2002. Because Seville does
not receive credit for the time that he was delinquent (nearly 11
years), see 61 P.S. § 331.21a(b), his maximum sentence was
again recalculated. See 61 P.S. § 331.21a(b) (parolee gets no
credit for delinquent time). The Board set his maximum sentence
at August 14, 2010. (Notice of Board Decision, 3/3/02). During
the investigation of Seville's habeas petition, the Attorney
General realized that there was an error in the calculation and
the maximum date should be August 6, 2010. The Attorney General
has stated that they will contact the Parole Board about this
Because Seville's sentence was properly calculated and he is
not being incarcerated beyond his maximum sentence, there is no
violation of his constitutional rights. Therefore, I make the following:
AND NOW, this 15th day of July, 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
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 DENIED.
3. There is no basis for the issuance of a certificate of