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Wyatt v. Diguglielmo

March 4, 2010

KEVIN WYATT, PETITIONER,
v.
DAVID DIGUGLIELMO, ET. AL., RESPONDENTS.



The opinion of the court was delivered by: Yohn, J.

Memorandum

Petitioner, Kevin Wyatt, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. On January 26, 2004, a state trial court sentenced Wyatt to ten- to twenty-years' imprisonment after he pleaded guilty to third-degree murder, a sentence that was to run consecutively to two ten- to twenty-year consecutive sentences he was already serving for two robbery convictions with credit for time served. Wyatt claims that he has not been given proper credit by the Pennsylvania Department of Corrections (the "DOC") for time served. Wyatt failed, however, to appeal the rejection by the Commonwealth Court of this sentencing-credit claim to the Pennsylvania Supreme Court, thus he did not exhaust the claim. In addition, the instant § 2254 petition is untimely. Accordingly, I will dismiss the petition as both procedurally barred and untimely, without issuing a certificate of appealability.

I. Factual and Procedural Background

On March 10, 1992, a jury found Wyatt guilty of first-degree murder and two counts of robbery. (Resp'ts' Answer to Pet. for Writ of Habeas Corpus ("Resp'ts' Answer") Ex. R-1 (Court of Common Pleas Docket Report) and Ex. R-2 (Commitment Papers).) On June 1, 1993, Wyatt was sentenced to life in prison on the murder charge, to be served concurrently with separate, consecutive sentences of ten to twenty years on each of the two robbery charges. (Id.)*fn1

On September 18, 1997, Wyatt filed a petition for a writ of habeas corpus under the Post Conviction Relief Act (the "PCRA"), 42 Pa. Con. Stat. §§ 9541-9546. Commw. v. Wyatt, No. 2050 EDA 1999, 2001 WL 34731263, at *3 (Appellee's Letter Brief). OnJune 18, 1999, the Court of Common Pleas denied the PCRA petition. Id. at *4. On July 16, 2001, the Pennsylvania Superior Court affirmed the denial of relief as to the robbery charges, but reversed the PCRA court as to the first-degree murder charge, vacated Wyatt's conviction on the murder charge, and remanded the case to the Court of Common Pleas for a new trial on the murder charge alone. Commw. v. Wyatt, No. 2050 EDA 1999, slip op. at 1 (Pa. Super. Ct. July 16, 2001) (Resp'ts' Answer Ex. R-4).

On January 26, 2004, Wyatt pleaded guilty in the Court of Common Pleas to the charge of third-degree murder.*fn2 The same day, the Court of Common Pleas sentenced Wyatt to a term of imprisonment of ten to twenty years, to run consecutively to the previously imposed robbery sentences. Commw. v. Wyatt, No. 51-CR-0603901-1990 (Pa. Ct. Com. Pl. Jan. 26, 2004) (Resp'ts' Answer Ex. R-5). The sentencing order specified that Wyatt's new third-degree murder sentence was to be "consecutive to all sentences" that Wyatt was currently serving, which would, of course, include the two existing sentences for the robbery convictions. (Id.) The sentencing order further specified that Wyatt was "to receive credit for all time in this case." Id.

On April 1, 2004, the DOC updated Wyatt's Sentence Status Summary. (Resp'ts' Answer Ex. R-6). The DOC aggregated Wyatt's three ten- to twenty-year sentences into a thirtyto sixty-year term of imprisonment. (Id.) Crediting Wyatt for time he served prior to his original sentencing, the DOC determined that Wyatt had an effective date of imprisonment of August 14, 1991, a minimum release date of August 14, 2021, and a maximum release date of August 14, 2051. (Id.)*fn3

Wyatt disputes these minimum and maximum release dates, and his disagreement with respondents forms the basis for the instant petition. He argues that he should be given credit on his robbery sentences and his new third-degree murder sentence for approximately twelve and a half years served prior to the imposition of the new third-degree murder sentence. Wyatt first raised this sentencing-credit claim on December 29, 2005, in his second petition to the Court of Common Pleas under the PCRA. (Pet'r's Traverse at 7; Resp'ts' Answer Ex. R-11 at 3 n.5.) In addition, on February 22, 2006, while the second PCRA petition was still pending, Wyatt filed a separate petition for review of his sentencing-credit claim in the Commonwealth Court of Pennsylvania. (Resp'ts' Answer Ex. R-8 (Commonwealth Court Docket, No. 74 MD 2006).)

In his petition for review with the Commonwealth Court, Wyatt alleged that he was entitled to credit on his third-degree murder sentence for time served from August 14, 1991, to January 26, 2004, as well as on the robbery convictions. (Id. Ex. R-11 at 3.) The Commonwealth Court dismissed the petition for review on March 29, 2006, concluding that Wyatt had received credit for all time served since August 14, 1991, and was not entitled to double credit:

The aggregation of consecutive sentences is mandatory. Commonwealth ex rel. Smith v. Department of Corrections, 829 A.2d 788 (Pa. Commw. 2003); Gillespie v. Department of Corrections, 527 A.2d 1061 (Pa. Commw. 1987). Time credit can only be given when it has not already been credited against another sentence and mandamus is not available to compel an award of double credit. 42 Pa. C. S. §9760; Taglienti v. Department of Corrections, 806 A.2d 988 (Pa. Commw. 2002); Doxsey v. Pennsylvania Department of Corrections, 674 A.2d 1173 (Pa. Commw. 1996). (Resp'ts' Answer Ex. R-12 (citations omitted).)*fn4 On April 12, 2006, the Commonwealth Court denied Wyatt's application for reconsideration. (Id. Ex. R-11 at 4 n.7.) Wyatt did not appeal this decision to the Pennsylvania Supreme Court, so that the issue was final on May 12, 2006.

On May 9, 2006, Wyatt filed a second petition for review with the Commonwealth Court, raising the same sentencing-credit claim. (Id. Ex. R-9 (Commonwealth Court Docket, No. 289 MD 2006) and Ex. R-11 at 4.) On May 17, 2006, the Commonwealth Court dismissed this second petition for review as duplicative of the first one. (Id. Ex. R-9 (Commonwealth Court Docket, No. 289 MD 2006) and Ex. R-11 at 4.)*fn5

On October 23, 2006, the Court of Common Pleas dismissed Wyatt's second PCRA petition. (Pet'r's Traverse at 7.) Wyatt appealed this decision to the Superior Court on November 9, 2006. (Id. at 4.)

On August 8, 2007, the Superior Court affirmed the decision by the Court of Common Pleas to reject Wyatt's second PCRA petition, concluding that the Court of Common Pleas lacked jurisdiction over any claims regarding Wyatt's robbery charges and convictions because those claims had been raised in Wyatt's first PCRA petition and rejected by both the Court of Common Pleas and the Superior Court. Commw. v. Wyatt, No. 3233 EDA 2006, slip. op. at 8 (Pa. Super. Ct. Aug. 8, 2007). With regard to the murder charge, conviction, and sentencing, the Superior Court concluded that Wyatt's claims were untimely. (Id. at 6-7.) Assuming without deciding that Wyatt's sentencing-credit claim was based on new evidence, the Superior Court found that the sentencing judge did, in fact, give credit to Wyatt for all time served. (Id. at 8.) The court then concluded that any claim "that the DOC miscalculated a sentence"-the claim at issue here-does not implicate "the legality of a sentence imposed" and therefore "is not cognizable under the PCRA" and must be filed directly "with the DOC or in an original action before the Pennsylvania Commonwealth Court." (Id.) Reconsideration was denied on September 28, 2007.

On November 26, 2007, Wyatt filed a third petition for review with the Commonwealth Court. (Id. Ex. R-10 (Commonwealth Court Docket, No. 558 MD 2007) and Ex. R-11 at 4.)

Wyatt alleged that, based on "newly disclosed records" and procedural facts, he was entitled to an award of twelve and a half years of credit for time served on the murder charge to reduce, as the Commonwealth Court noted, his third-degree murder sentence of ten to twenty years to a sentence of zero to seven years and a half years. (Id. Ex. R-11 at 4.) Wyatt asserted thatthe DOC, despite being bound to follow the order of the Court of Common Pleas, had continuously refused to award him such credit. (Id.) As to the "newly disclosed records" supporting this third petition for review, Wyatt apparently cited the August 8, 2007, opinion by the Superior Court in which the court, in the midst of rejecting Wyatt's second PCRA petition, noted that in the sentencing order on the third-degree murder conviction the Court of Common Pleas had directed that Wyatt receive credit for all time served. (Id.)

On February 5, 2008, while his third petition for review was still pending in the Commonwealth Court, Wyatt submitted the instant petition for federal habeas relief to prison officials, and it appeared on the docket of this court two days later, on February 7, 2008. Wyatt raised two claims in the instant petition: (1) that the Philadelphia District Attorney's Office maintained a policy of racial discrimination in jury selection, which affected the selection jurors in his case, in violation of the rule announced in Batson v. Kentucky, 476 U.S. 79 (1986); and (2) as discussed above, that he did not receive credit for the time he spent in custody for first-degree murder prior to his resentencing for third-degree murder, allegedly in violation of his federally protected due process and equal protection rights.

On March 20, 2008, I referred the instant petition to the Third Circuit for consideration as a second or successive petition. On May 22, 2008, as to the Batson claim, the Third Circuit denied Wyatt's application to file a second or successive petition because he did not satisfy the requirements of 28 U.S.C. ยง 2244(b)(2). In re: Kevin Wyatt, No. 08-1914 (3d Cir. May 22, 2008). The Third Circuit also held, however, that Wyatt's sentencing-credit claim did not constitute a second or ...


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