United States District Court, M.D. Pennsylvania
November 21, 2005.
THEODORE M. NICKENS, Petitioner
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was
initiated by Theodore M. Nickens, an inmate presently confined at
the Rockview State Correctional Institution, Cresson,
Pennsylvania (SCI-Cresson). Named as Respondent is the
Pennsylvania Board of Probation and Parole (Parole Board).
Service of the petition was previously ordered.
Nickens was convicted of third degree murder in the Delaware
County Court of Common Pleas. On March 4, 1988, the Petitioner
was released on parole. He was arrested on April 10, 1990 in the
District of Columbia (D.C.) and charged with burglary related
offenses. As a result of his arrest, the Parole Board issued a
parole violation warrant which was lodged as a detainer with D.C.
authorities. Nickens was convicted of the D.C. charges and sentenced to an
eleven (11) to forty (40) year term of imprisonment on September
19, 1991. During 1999, the Parole Board lodged a second detainer
for the purpose of obtaining custody of Nickens following the
completion of his D.C. sentence. Petitioner was granted parole
with respect to his D.C. conviction and returned to Pennsylvania
on August 10, 2004.
A parole violation hearing was conducted on September 16, 2004.
By decision dated October 22, 2004, the Parole Board concluded
that Nickens should be recommitted as a convicted parole violator
based on his D.C. conviction. The recalculated maximum term of
his Pennsylvania state sentence will expire on August 15, 2009.
In his present action, Petitioner contends that his
Pennsylvania state sentence expired in 1995, thus, he concludes
that his ongoing incarceration is unconstitutional. He adds that
the Parole Board's initial detainer prevented his release on
bail. Consequently, Nickens also claims that his D.C. period of
confinement should be applied towards service of his Pennsylvania
The Respondent argues in part that Nickens' present petition
should not be entertained because he failed to exhaust his
available state court remedies. As a threshold matter, a habeas petitioner must either show that the federal
constitutional claims asserted in the federal habeas petition
have been "fairly presented" to the state courts, or that there
is an absence of available state court corrective process, or
that circumstances exist rendering the available state court
process ineffective to protect the petitioner's rights. See
28 U.S.C. § 2254(b).*fn1
However, as correctly recognized by the Respondent, the
question of exhaustion need not be resolved as the claims
presented by Nickens are clearly without merit. See
28 U.S.C. § 2254(b)(2) (a federal court can deny a habeas petition "on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State").
Petitioner's initial claim contends that his Pennsylvania state
parole expired in 1995. Consequently, he asserts that he is
entitled to release. It is undisputed that Nickens was granted parole before the
maximum term of his Pennsylvania state sentence expired.
Specifically, at the time of his parole on March 4, 1988,
Petitioner had five (5) years and five (5) days remaining to be
served on his Pennsylvania state sentence.
While still on parole, Nickens was arrested in D.C. and charged
with new criminal conduct. As the result of this arrest, which
occurred on April 10, 1990, the Parole Board issued a parole
As part of the subsequent parole revocation procedures,
Petitioner's Pennsylvania state sentence was recalculated by the
Parole Board to reflect that he was not entitled to credit for
any time spent on parole. The recalculation computed Petitioner's
maximum release date by adding five (5) years and five (5) days
(the amount of time remaining on Petitioner's sentence at the
time of his March 4, 1988 parole release) from the date Nickens
was returned to Pennsylvania state custody, August 10, 2004.
When a parolee is convicted of a new criminal offense while on
parole, Pennsylvania law, 61 P.S. §§ 331.21 and 33.21a, requires
that "the parolee serve the entire remaining balance of the
original term, with no credit for time served on parole." Gaito
v. Pennsylvania Board of Probation and Parole, 563 A.2d 545, 547
(Pa.Cmwlth. 1989). It is undisputed that Nickens had five (5)
years and five (5) days left to be served on his original sentence when he was granted his parole. As noted above,
Petitioner was not entitled to credit for any time spent on
parole. As discussed below, time spent in service of his D.C.
sentence could not also be counted towards service of his
Consequently, the remainder of Petitioner's sentence was
properly calculated as beginning on August 10, 2004, the date
Nickens was returned to Pennsylvania state custody. Since the
recalculation of his original sentence by the Parole Board was in
accordance with Pennsylvania state law, Nickens is not entitled
to federal habeas corpus relief.
Nickens contends that he was not given credit for pre-trial
confinement in D.C. from April 10, 1990 to September 19, 1991.
See Doc. 25. He also claims entitlement to credit for time
served while his D.C. appeal was pending, specifically, from July
7, 1993 to July 6, 1996. Id. Respondent contends that since
those periods of time were applied towards service of Nickens'
D.C. sentence, he is not entitled to have that time also credited
towards service of his parole violation term.
Petitioner's remaining argument contends that because the
Parole Board detainer prevented his release on bond, time spent
in D.C. custody should be credited towards service of his
Pennsylvania parole violator term. Respondent contends that this
claim is baseless because all time spent in D.C. custody was applied towards service of his D.C. sentence and thus, cannot
be applied towards service of his Pennsylvania state sentence.
The Pennsylvania Supreme Court in Gaito V. Pennsylvania Board
of Probation and Parole, 412 A.2d 568, 571 (1980) held that time
spent in custody pursuant to a detainer warrant shall be credited
to a convicted parole violator's original term only when the
parolee was eligible for, and had satisfied bail requirements for
the new offense and thus remained incarcerated only by reason of
the detainer warrant against him. However, Pennsylvania courts
have recognized an exception to the above holding, namely, that a
parolee is not entitled to credit against his original sentence
if the parolee is convicted of a new offense and a new sentence
is imposed. See Jones v. Pennsylvania Board of Probation and
Parole, 831 A.2d 162 (Pa.Cmwlth. 2003).
In Martin v. Pennsylvania Board of Probation and Parole,
840 A.2d 299, 309 (Pa. 2003), the Pennsylvania Supreme Court
clarified that "where an offender is incarcerated on both a Board
detainer and new criminal charges, all time spent in confinement
must be credited to either the new sentence or the original
sentence." (emphasis added). Federal courts have similarly held
that a prisoner may not receive credit on a sentence for time
that has already been credited against service of another
sentence. See generally Chambers v. Holland, 920 F.Supp. 618, 623 (M.D. Pa.), aff'd 100 F.3d 946 (3d Cir. 1996).
It is initially noted that the Petitioner has not provided this
Court with any clear indication that he would have been able to
obtain his release on bail in D.C. More importantly, the
Respondent has submitted documents clearly establishing that the
Petitioner's D.C. sentence was calculated as commencing on April
10, 1990 (the date of Petitioner's arrest) and concluding on the
date of his parole release. Nickens has not come forward with any
evidence disputing the Respondent's submissions. Thus, this Court
has no basis to refute the Respondent's contention that every day
of the Petitioner's D.C. confinement was credited towards service
of his D.C. sentence.
Nickens is not entitled to an award of double credit, his
period of pre-trial D.C. confinement and time served while his
D.C. appeal was pending cannot be applied towards service of both
his D.C. sentence as well as service of the remainder of his
Since Nickens has not presented a viable basis for an award of
federal habeas corpus relief, his petition will be denied. An
appropriate Order will enter.
AND NOW, THEREFORE, THIS 21st DAY OF NOVEMBER, 2005, IT IS
HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus is denied.
2. Petitioner's motions (Doc. 28) requesting his
immediate release is denied.
3. The Clerk of Court is directed to close the case. 4. Based on the Court's determination, there is no
basis for the issuance of a certificate of
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