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Wicker v. PA Board of Probation and Parole

March 24, 2010

ATIBA WICKER, PETITIONER
v.
PA BOARD OF PROBATION AND PAROLE, ET AL., RESPONDENTS



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

I. Introduction

The petitioner, Atiba Wicker, a pro se inmate currently incarcerated at the Frackville State Correctional Institution (SCI-Frackville), in Frackville, Pennsylvania, has filed the present Petition for Writ of Habeas Corpus challenging his repeated denials of parole. Named as respondents are the Pennsylvania Board of Probation and Parole (the Board), Superintendent Shannon, and the Pennsylvania State Attorney General. (Doc. 1, Pet.) Also pending before this Court are Mr. Wicker's motions requesting the Court conduct an in camera review of a document relied upon by the Board in denying him parole as well as a motion for summary judgment. (See Docs. 14 and 16.) For the reasons that follow, Mr. Wicker's request for habeas relief will be denied, as will his two pending motions.

II. Facts and Procedural History

In 1993, Mr. Wicker was arrested in Philadelphia County on three separate occasions for a variety of offenses including four counts of robbery.*fn1 Mr. Wicker pled guilty to all four counts of robbery and was sentenced in the Philadelphia County Court of Common Pleas to four concurrent terms of 8 1/2 to 20 years imprisonment. (Doc. 10, Respondents' Answer to the Pet. at R. 16.)*fn2 Originally, Mr. Wicker's controlling minimum date was February 17, 2003, and he had a maximum date of August 17, 2014. (Id. at R. 16.) However, due to a parole violation (which will be discussed at greater detail infra), Atiba Wicker's present maximum date is May 30, 2015. (Id. at R. 62.)

The Board first denied Mr. Wicker parole on October 6, 2003. (Id. at R. 20.) The Board advised that he would be eligible for review again on or after February 2004. (Id.) On April 9, 2004, the Board released Atiba Wicker on parole. (Id. at RR. 22 - 24 and R. 26.) On August 19, 2004, the Board declared him delinquent after he failed to return to his approved community corrections center. (Id. at R. 32.)

The Board had no knowledge of Mr. Wicker's whereabouts until May 29, 2005, when he was was arrested for recklessly endangering another person (REAP) and fleeing or attempting to elude a police officer. (Id. at RR. 34 - 39.) On June 6, 2005, Mr. Wicker was returned to a state correctional facility due to the pending parole violation charges. (Id. at R. 41.) On November 7, 2005, the new criminal charges were dismissed. (Id. at R. 35.) Following a parole violation hearing, the Board issued an April 4, 2006, decision continuing his parole. (Id. at R. 44.) Mr. Wicker was released on parole from SCI-Frackville on April 11, 2006. (Id. at R. 41.)

On September 28, 2006, Atiba Wicker was again declared Atiba Wicker was declared delinquent by the Board for absconding from his assigned community corrections center. (Id. at R. 46.) Mr. Wicker's whereabouts were unknown from September 27, 2006 until July 10, 2007, when he was arrested in Philadelphia County for possession of a controlled substance and use/possession of drug paraphernalia. (Id. at R. 49.) On July 24, 2007, Mr. Wicker was also charged with criminal attempt murder; aggravated assault; criminal conspiracy engaging murder; person not to possess, use a firearm; firearms not to be carried without a license; carrying a firearm in public in Philadelphia; possession of instrument of crime, simple assault and REAP. (Id. at RR. 53 - 58.) On August 21, 2007, Mr. Wicker was detained by the Board pending resolution of the July 10, 2007, drug charges. (Id. at R. 60.) On September 20, 2007, the drug charges were withdrawn. (Id. at RR. 48 - 51.) A month later, the charges stemming from the July 24, 2007, arrest were dismissed. (Id. at RR. 53 - 58.)

On January 9, 2008, the Board recommitted Atiba Wicker as a technical parole violator (TPV) for violating the conditions of his parole (failure to report). (Id. at R. 62.) Mr. Wicker was ordered to serve 6 months backtime for failure to report as required. (Id.)

On March 25, 2008, the charges arising out of the July 24, 2007 arrest were refiled in Philadelphia Municipal Court. (Id. at RR. 53 - 58.) On April 8, 2009, the Board denied Mr. Wicker reparole. (Id. at R. 764.) In refusing to grant parole, the Board stated as follows:

Following an interview with you and a review of your file, and having considered all matters required pursuant to the Parole Act, The Board of Probation and Parole, in the exercise of its discretion, has determined that this time that: your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were parole/reparoled. Therefore, you are refused parole/reparole at this time. The reasons for the Board's decision include the following: Your minimization/denial of the nature and circumstances of the offense(s) you committed.

Your prior history of supervision failure(s).

Your need to participate in and complete additional institutional programs.

Your interview with the Hearing Examiner.

Other factors deemed pertinent in determining that you should not be paroled: you appear to lack insight regarding your criminal history and prior parole failure. You will be reviewed in or after October, 2008.

At your next interview, the Board will review your file and consider: Whether you have successfully completed a treatment program for: Thinking for a Change.

Whether you have maintained a favorable recommendation fro parole from the Department of Corrections.

Whether you have maintained a clear conduct record and completed the Department of Corrections' Prescriptive Program(s).

You may file an application for parole/reparole no sooner than 1 year after the date the last decision denying parole/reparole was recorded. (Id. at RR. 64 - 65.)

On June 17, 2008, the charges flowing from the July 24, 2007, arrest were dismissed. (Id. at RR. 53 - 58.) On September 29, 2008, Governor Rendell announced a parole moratorium pending a review of the process by which Pennsylvania offenders, especially violent offenders, were released after two Philadelphia police officers were shot and killed by Commonwealth paroled offenders within a few months of each other. (Doc. 1, Pet. at RR. 35 - 39.) A Press Release from Governor Rendell's office states that during this moratorium, "[t]he Board of Probation and Parole may continue to conduct parole hearings and case reviews, but not grant parole." (Id. at R. 35.) When challenged as to his authority to impose such an edict, Governor Rendell stated, "I don't have the right to legally oppose [i.e. the grant of parole], but I have the right to ask the parole board to refrain [from granting] it, ...


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