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Marvin v. Killian

September 4, 2008

DONALD W. MARVIN, PETITIONER,
v.
WARDEN J.W. KILLIAN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(Judge Caputo)

MEMORANDUM

Petitioner Donald W. Marvin, an inmate currently confined at the Otisville Federal Correctional Institution ("FCI-Otisville") in Otisville, New York, commenced this action by filing a petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254.*fn1 He challenges the Pennsylvania Board of Probation and Parole ("PBPP")'s denial of his request to retroactively grant him parole as of August 14, 2000 so that he can receive a credit on the federal sentence he currently is serving.

The parties have briefed the issues, and the matter is ripe for disposition. For the reasons set forth below, the Petition will be denied.

BACKGROUND

On August 22, 1995, Marvin was sentenced to a term of imprisonment of two (2) to six (6) years following his conviction in the Monroe County Court of Common Pleas of Theft by Deception, Receiving Stolen Property, and two counts of Removal or Falsification of Identification Number. (Doc. 19-1 ¶ 1.) Marvin's minimum term of sentence originally was set at September 25, 2000, and his maximum term was set at September 24, 2004. (Id. ¶ 2.)

On October 30, 1998, Marvin was sentenced to a term of 130 months imprisonment in the United States District Court for the Eastern District of Pennsylvania after he pled guilty to Conspiracy to Interfere with Interstate Commerce by Robbery, Aiding and Abetting, and Using a Firearm during a Crime of Violence. (Id. ¶ 3; Doc. 19-3 at 2-3.)

On September 13, 2000, the PBPP issued a decision granting Marvin constructive parole on or after September 25, 2000, his minimum term date, to begin serving his federal sentence. (Doc 19-3 at 4-5.) On October 25, 2000, Marvin was released on parole to his federal sentence. (Id. at 5.)

On April 15, 2004, the PBPP notified Marvin that it had modified his minimum and maximum sentence dates to August 14, 2000 and August 14, 2004, respectively, due to a sentence credit adjustment. (Id. at 6.)

On August 14, 2004, Marvin's maximum sentence date expired. (Doc. 19-1 ¶ 7.) On December 27, 2004, the PBPP informed Marvin that its records as to his state sentence were closed. (Doc. 19-3 at 7.)

On July 15, 2005, Marvin filed a petition for review in the Commonwealth Court requesting that the Court order the PBPP to retroactively parole him to his federal sentence as of August 14, 2000, his modified minimum sentence date.

(Doc. 19-1 ¶ 8.) On July 18, 2005, the Commonwealth Court dismissed Marvin's petition sua sponte for lack of original jurisdiction.*fn2 (Id. ¶ 9.) Marvin's application for reconsideration was denied by the Commonwealth Court on August 18, 2005. (Id. ¶¶ 10-11.)

On August 18, 2005, Marvin appealed the Commonwealth Court's decision to the Pennsylvania Supreme Court. (Id. ¶ 12.) On July 28, 2006, the Supreme Court affirmed the Commonwealth Court's Order dismissing Marvin's case for lack of jurisdiction.*fn3 (Id. ¶ 13.)

Marvin filed the instant Petition with this Court on August 13, 2007. By Order dated September 18, 2007 (Doc. 8), the Clerk of Court was directed to add the PBPP as a Respondent and to serve a copy of the Petition on the warden of FCI-Otisville and PBPP, and Respondents were directed to file an answer within twenty (20) days. Following a request for an extension of time, which was granted, on November 6, 2007, Respondent PBPP filed an Answer (Doc. 19) and ...


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