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July 15, 2004.


The opinion of the court was delivered by: JACOB HART, Magistrate Judge


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 his claim.

  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 Decision, 10/6/87).

  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 error.

  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 appealability.
  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 ...

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