The opinion of the court was delivered by: Norma L. Shapiro, J.
William Evans, an inmate at the State Correctional Institute at Waymart, Pennsylvania, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The Honorable Charles B. Smith, former United States Chief Magistrate Judge for Eastern District of Pennsylvania, filed a Report and Recommendation ("R&R") recommending the petition be denied. The R&R will be adopted in part and the petition will be granted.
On October 29, 1986, Evans was arrested in Memphis, Tennessee on warrants issued in Lehigh County, Pennsylvania; he waived extradition. On November 6, 1986, Evans was transferred to Lehigh County Prison and charged with rape. On November 13, 1986, Evans was transferred to Northampton County, Pennsylvania and charged with separate counts of rape in that jurisdiction. Evans was convicted and sentenced in both counties, but in 1992, the Pennsylvania Superior Court vacated both convictions and ordered new trials.
On remand, Evans stipulated to non-trial dispositions in both cases. On January 14, 1994, Evans pleaded guilty in Northampton County and was sentenced to 10 to 20 years' imprisonment. On May 11, 1994, Evans entered a plea of nolo contendere in Lehigh County. On June 29, 1994, Judge Lawrence Brenner of the Lehigh County Court of Common Pleas sentenced Evans to 10 to 20 years' imprisonment, to be served concurrently with the sentence imposed in Northampton County.*fn1 On July 8, 1994, the Lehigh Court of Common Pleas issued a "Court Commitment Form DC-300B"*fn2 (hereinafter, "Form DC-300B") recording the effective date of the Lehigh County sentence as November 6, 1986. (Paper No. 12, Ex. C.) Judge Brenner did not sign Form DC-300B.*fn3
By designating the effective date of sentence as November 6, 1986 on Form DC-300B, the Clerk of Court granted Evans credit on the Lehigh County sentence for all time served in custody from that date forward. At some point after Form DC-300B was issued on July 8, 1994, the Pennsylvania Department of Corrections determined that Evans was erroneously granted time credit because, under the Department's interpretation of state law, he was not entitled to credit on the Lehigh County sentence for time served on the Northampton County sentence from November 13, 1986 to March 21, 1991.
On December 28, 1994, Penny R. Grissinger, a records supervisor at the Department of Corrections wrote to Judge Brenner:
Your assistance is required in resolving a question concerning the pre-commitment credit indicated on the sentence imposed on the above-named inmate.
Documents received by the Department of Corrections indicated that on June 29, 1994, under the seal of the court, a pre-commitment credit was ordered extending from November 6, 1986 to be applied to the following sentence: CP#125, '87. However, other documents in our possession indicate that this inmate has been continuously serving a sentence previously imposed by Northampton County, CP#1694, '86, and that all of the time served by this inmate since November 13, 1986, has been credited towards the satisfaction of that sentence.
The legal office of the Department of Corrections has advised me that under prevailing statutory and case law, it does not appear to be appropriate to give pre-commitment credit on a subsequent sentence for time that was served in satisfaction of a previously imposed sentence. Pennsylvania Rule of Criminal Procedure 1406(c) provides that if the defendant is in prison under a sentence imposed for any other offense when a new sentence is imposed, the new sentence "shall be deemed to commence from the date of imposition," unless the sentence is expressly designated to be a consecutive sentence. The language appearing in Pennsylvania Rule of Criminal Procedure 1406(c) is adopted verbatim from a now repealed Pennsylvania statute which had been codified at 19 P.S. 894.
The reinactment [sic] of exactly the same language in a rule of criminal procedure that was found in a prior statute indicates that it was intended that the rule of procedure should be interpreted in the same way as the prior statute had been interpreted by the courts. [Citation omitted.] The appropriate interpretation of the language in 19 P.S. 894 was discussed at length by the Pennsylvania Superior Court in the case of Commonwealth ex rel. Lerner v. Smith, 151 Pa. Super. 265, 30 A.2d 347 (1943). The relevant portion of that opinion reads as [Quotation omitted.]
Eligibility for pre-commitment credit is controlled by statute. 42 Pa. C.S. 9760. That statute allows credit for all time spent in custody "as a result of the criminal charge for which a prison sentence is imposed" (emphasis added). However, a long line of Pennsylvania cases have consistently adhered to the principle that a sentenced prisoner who has already once received a credit for time served is not entitled to receive a double credit for this same time on a separate and distinct sentence. [Citations omitted.]
Therefore, the Department has, to date, not extended any duplicative portion of this credit to this inmate. If your honor agrees that the credit is not appropriate, then amended commitment papers from the Clerk of Court removing the reference to this credit would be sincerely appreciated. However, if Your Honor disagrees with the analysis of the law set forth in this letter and wishes the Department to apply the full amount of credit originally indicated for this sentence, the Department will apply that credit upon receiving your reply to this letter confirming your intention.
Letter from Penny R. Grissinger to Honorable Lawrence J. Brenner (Paper No. 24, Ex. B) (emphasis in original). The letter indicates a carbon copy was sent to "Defense Attorney," but Evans disclaims receipt.*fn4 (Paper No. 24.) Nothing in the record suggests Judge Brenner responded to Ms. Grissinger or the Department of Corrections. On February 9, 1995, Andrea Naugle, Lehigh County Clerk of Court, certified, signed and notarized Form DC-300B, which had been issued without certification on July 8, 1994.*fn5 (Paper No. 12, Ex. C.)
For eleven years following the imposition of Evans' sentence in 1994, the Department of Corrections and the Board of Probation and Parole represented to Evans he would be released on November 13, 2006. As recently as October 13, 2004, the Pennsylvania Board of Probation and Parole notified Evans, "You will serve your unexpired maximum sentence, 11/13/2006." (Paper No. 12, Ex. E.) However, on April 13, 2005, without notice or a hearing, the Department of Corrections issued a Sentence Status Summary deducting credit from the Lehigh County sentence for time served on the Northampton County sentence from November 13, 1986 to March 20, 1991. The Sentence Status Summary explained that "credit for that time period is not available toward the Lehigh County sentence. With this DC16E report, the apparently inadvertent duplicate credit is now removed from the computation @Lehigh CP125, in accordance with current directives under Policy 11.5.1." (Paper No. ...