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