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NICKENS v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE

November 21, 2005.

THEODORE M. NICKENS, Petitioner
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.



The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge

MEMORANDUM AND ORDER

Background

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 state sentence.

  Discussion

  Exhaustion

  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").

  Sentence Recalculation

  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 violation warrant.

  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, ...


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