The opinion of the court was delivered by: Mitchell, M.J.
Emmitt Reese, and inmate at State Correctional Institution -Forest has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
Reese who is presently incarcerated contends here that his continued incarceration is illegal in that the Pennsylvania Board of Probation and Parole no longer has jurisdiction over him. As more fully expounded upon, the instant petition is both time barred, and incorrect as a matter of law. In order to evaluate Reese's claim a brief summary recitation of the chronology of his incarceration is appropriate.*fn1
On July 5, 1984, the petitioner was convicted of robbery, simple assault and criminal conspiracy at No. 1609 of 1984 in the Court of Common Pleas of Allegheny County, and on August 17, 1984, he was sentenced to a thirty-four month to ten year period of incarceration to be followed by a five year probationary period.*fn2 The effective date of this sentence was May 17, 1987, when the petitioner completed a prior sentence he was serving.*fn3 As a result of repeated parole violations, the petitioner was resentenced on several occasions.*fn4 In particular, on January 31, 2005 he was reincarcerated as a parole violator to served a period of three months to twenty-three months effective December 6, 2003 and to be placed on probation for a period of twenty years effective January 31, 2005.*fn5 He was again resentenced as a parole violator on November 5, 2007 to a period of incarceration of two and a half to five years effective April 29, 2007.*fn6 The petitioner is now serving this sentence which has a minimum release date of October 29, 2009 and maximum release date of April 29, 2012.*fn7 An appeal of this sentence was taken to the Superior Court and voluntarily withdrawn on January 9, 2009.*fn8 The Commonwealth Court also dismissed the petitioner's habeas corpus petition on February 25, 2009, as improperly brought under its original rather than its appellate jurisdiction.*fn9
In his petition filed here, Reese contends that: the legal Court ordered maximum sentence imposed on July 15, 1984 of 34 months to 10 years. With 5 years probation to begin the day after his (10) year maximum sentence was served in full. Which was effective on May 17, 1987 making his legal Court ordered maximum pursuant to 42 Pa.C.S. § 5505, May 17, 1997 as a matter of law... It is well settled that the Parole board cannot extend maximum sentence for technical parole violation... The board had no authority to extend defendant's maximum sentence to October 30, 1998. Which is the direct cause of defendant's present illegal confinement... When defendant was arrested on September 28, 1998, he was by law legally maxed out on May 17, 1997. So on September 28, 1998, the Parole board had no jurisdiction to extend his (10) year maximum. On June 17, 1999 his (10 to 20 month sentence) began after he served the (5) years probation which started again by Pa. Law on the day of his new arrest, September 28, 1998. Making the max date of that (5) year September 28, 2003. The time credit goes towards his new sentence of 10 to 20 months which started on September 29, 2003. 20 months from that date is May of 2005. So by law the appellant is 3 years and 8 months past his legal court ordered maximum sentence(s).*fn10
That is, the petitioner here contends that as a result of the actions of the Parole Board, the maximum of his original sentence has been illegally extended.
It is provided in 28 U.S.C. §2254(b) that: An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
This statute represents a codification of the well-established concept which requires that before a federal court will review any allegations raised by a state prisoner, those allegations must first be presented to that state's highest court for consideration. Preiser v. Rodriguez, 411 U.S. 475 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996).
It is only when a petitioner has demonstrated that the available corrective process would be ineffective or futile that the exhaustion requirement will not be imposed. Preiser v. Rodriguez, supra.; Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995).
If it appears that there are available state court remedies, the court must determine whether a procedural default has occurred. If a procedural default has occurred, the court must determine whether cause or prejudice exists for the default, or whether a fundamental miscarriage of justice would result from a failure to consider the claims. Carter v. Vaughn, 62 F.3d 591 (3d Cir. 1995).
In construing § 2254(d)(1), the Court in Williams v. Taylor, 529 U.S. 362, 412-413 (2000) stated:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied - the state-court adjudication resulted in a decision that (1) "was contrary to... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of... clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
In Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000), the Court determined: The Court in Williams v. Taylor held that "[u]nder the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, further held that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Thus, under the "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." The Court in Williams v. Taylor made it clear that the "contrary to" and "unreasonable application"clauses have independent meaning.
In the instant case, the Commonwealth notes that petitioner has been before the Superior Court only at docket No. 2197 WDA 2007*fn11 and before the Commonwealth Court on at least five occasions.*fn12 The petitioner withdrew his appeal of this sentence and for this reason, has failed to exhaust the state court remedies which were available to him. However, we can disregard the exhaustion issue since where, as here, the ...