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Bush v. Pennsylvania Board of Probation and Parole

November 14, 2006

CLINTON BUSH, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



The opinion of the court was delivered by: Judge Conaboy

MEMORANDUM

Background

Clinton Bush, an inmate presently confined at the McCreary United States Penitentiary, Pine Knot, Kentucky, filed this pro se petition for writ of habeas corpus while previously incarcerated at the Schuylkill Federal Correctional Institution, Minersville, Pennsylvania (FCI-Schuylkill). Named as sole Respondent is the Pennsylvania Board of Probation and Parole (Parole Board). Service of the petition was previously ordered.

Petitioner was originally sentenced in Pennsylvania state court to a one (1) year, eight (8) month, and fifteen (15) day to six (6) year, eleven (11) month term of incarceration. On December 15, 1997, Bush was granted parole. Approximately one (1) month later, Petitioner moved from his approved residence without permission. He was arrested in Philadelphia, Pennsylvania on January 18, 1998 and charged with theft by unlawful taking, criminal mischief, and receiving stolen property. On March 18, 1998, the Parole Board declared that Bush was delinquent as of January 13, 1998.

Petitioner was arrested for a second time in Philadelphia on June 8, 1998 and charged with two firearm offenses. He was placed in the Philadelphia County Prison. Following his arrest, the Parole Board charged Bush with technical violations of his parole. Specifically, it was alleged that Petitioner had changed his residence without permission and failed to follow written instructions to report. A parole hearing was held on June 23, 1998 at which time Bush admitted to the technical violations. By Notice dated September 8, 1998, the Parole Board ordered the Petitioner to be: (1) detained pending disposition of his pending criminal charges, and (2) recommitted to a state correctional facility to serve an eighteen (18) month term when available.

On August 11, 1998, Bush was indicted in the United States District Court for the Eastern District of Pennsylvania on a charge of possession of a firearm by a convicted felon.*fn1 This alleged offense also stemmed from Bush's June 8, 1998 arrest. The Petitioner was taken into federal custody pursuant to a writ of habeas corpus ad prosequendum on August 27, 1998. Shortly thereafter, the Eastern District ordered that Petitioner be detained pending trial on his federal charge.

On September 24, 1998, Bush was sentenced to a term of probation in Pennsylvania state court with respect to the receiving stolen property charge of January 18, 1998. The following month, the Commonwealth nolle prossed the state criminal charges relating to Petitioner's June 8, 1998 arrest in favor of the pending federal prosecution. He entered a guilty plea to the federal firearm charge on December 14, 1998.

Bush was sentenced to a one hundred and eighty (180) month term of incarceration by the Eastern District of Pennsylvania on March 18, 1999.*fn2 Thereafter, he remained in federal custody. On April 8, 1999, the Parole Board issued a parole violator warrant on the grounds that Bush was both a technical and convicted parole violator. The warrant was lodged with federal correctional officials as a detainer against Bush.

In his pending action, Petitioner claims entitlement to federal habeas corpus relief on the grounds that he was not returned to state custody upon the conclusion of his federal prosecution to complete service of his eighteen (18) month technical parole violator term. Bush contends that he should have been returned to state custody because the Parole Board had "exercised primary custody over petitioner." Doc. 1, ¶ 12(A). In a supporting memorandum, Bush adds that because he was not returned to state custody upon conclusion of his federal prosecution, the Parole Board "committed a manifest abuse of its power" and violated his due process rights. Doc. 2, p. 5. He concludes that his eighteen (18) month parole violator term began to run as of the date of his June 8, 1998 arrest, and because the Parole Board did not relinquish primary custody, his parole violator term expired on June 5, 2002 while he was in federal custody pursuant to the writ of habeas corpus ad prosequendum.

Discussion

Title 28, United States Code § 2241, vests the federal district courts with jurisdiction to grant a writ of habeas corpus to persons in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). See also Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir. 1976) ("The role of judicial review of a Parole Board decision on application for a writ of habeas corpus is to insure that the Board has followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious, nor based on impermissible conditions.").

In the present action, Petitioner contends that the Parole Board violated his constitutional rights by not having him returned to state custody upon the conclusion of his federal prosecution. He asserts that based upon standards set forth in Chambers v. Holland, 920 F.Supp. 618 (M.D. Pa. 1996), aff'd, 100 F.3d 946 (3d Cir. 1996), there was never a proper relinquishment of primary custody by the Commonwealth. See Doc. 2, p. 4. Bush adds that he should have been returned into state custody so that a parole revocation hearing on the charge that he was a convicted parole offender could have been convened within 120 days of his federal conviction.

It is undisputed that the Parole Board by decision dated March 18, 1998 ordered the Petitioner to serve an eighteen (18) month term of incarceration for his admitted technical violations of his state parole. Bush was taken into federal custody on August 27, 1998 pursuant to a writ of habeas corpus ad prosequendum. Thereafter, Petitioner was convicted of a firearms offense in federal court.

The Petitioner was subsequently sentenced in federal court on March 18, 1999. The Eastern District in sentencing Petitioner recommended that Bush be designated to a state institution to enable a portion of his federal sentence to run concurrently ...


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