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Reid v. Lawler

March 25, 2010


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


I. Introduction

Petitioner, Percy Reid ("Petitioner"), filed a federal Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. No. 1). The undersigned referred the case to Magistrate Judge Arnold C. Rapoport for a Report and Recommendation ("R&R") on the merits. Magistrate Judge Rapoport filed his R&R on October 29, 2009 (Doc. No. 29), and presently before the Court are Petitioner's Objections to the R&R, which he timely filed on November 9, 2009 (Doc. No. 30).

Upon independent and thorough review, and for the reasons stated below, this Court denies Petitioner's objections and accepts Magistrate Judge Rapoport's R&R.

II. Background and Procedural History

Petitioner was convicted on September 13, 1978 in the Philadelphia Court of Common Pleas on charges of burglary, theft by unlawful taking, criminal conspiracy, and criminal contempt, and was sentenced to a term of imprisonment of five to fifteen years (the "CCP sentence"). Petitioner was released on parole on October 19, 1984. On March 20, 1991, Petitioner was arrested on new charges, and the Philadelphia Board of Probation and Parole (the "Board") detained him pending resolution of these new charges. Petitioner was found guilty of the new charges in Philadelphia Municipal Court on November 14, 1991, and was sentenced to one to two years incarceration (the "MCP sentence"). On October 6, 1993, Petitioner was recommitted as a convicted parole violator to serve the balance of his original five to fifteen year CCP sentence.

On December 29, 1993, Petitioner was again released on parole from his CCP sentence, but because he had not yet begun to serve his MCP sentence, he was effectively paroled to begin serving that sentence. At some later date, Petitioner was released from custody,*fn1 but Petitioner was arrested again on new charges on January 13, 1995. Because of this new arrest, Petitioner was detained by the Board on April 10, 1995, pending resolution of the new charges. Petitioner was found guilty of the new charges and sentenced on January 14, 1997, to a term of incarceration of ten to twenty years (the "1997 sentence"). Following this conviction, Petitioner was again recommitted by the Board on February 4, 1997 as a convicted parole violator to continue serving the twenty-seven months still remaining on his CCP sentence. On June 24, 1997, the Board determined that the remainder of Petitioner's maximum sentence would expire on March 21, 2005.

After twice being denied parole -- on July 16, 1998, and August 3, 2000, respectively -- Petitioner filed a mandamus action in the Commonwealth Court of Pennsylvania on August 10, 2000, challenging: (1) the October 6, 1993 revocation decision, (2) the February 4, 1997 revocation decision, and (3) the Board's June 24, 1997 recalculation of the remainder of Petitioner's sentence. By Order dated March 20, 2001, the Commonwealth Court quashed Petitioner's action sua sponte on the ground that there was no order timely appealed in Petitioner's August 10, 2000 filing. Petitioner's subsequent attempt to appeal to the Pennsylvania Supreme Court was ordered closed for failure to perfect.

Petitioner was again denied parole on February 19, 2002, and subsequently, on March 4, 2002, filed two actions -- one with the Commonwealth Court of Pennsylvania, the other with the Pennsylvania Supreme Court -- again challenging the Board's authority to recommit him as a convicted parole violator without a timely revocation hearing, and asserting that the Board's failure to grant him a timely hearing caused the Board to illegally extend his CCP sentence. On March 7, 2002, the Commonwealth Court dismissed the petition on the ground that Petitioner could not challenge an un-appealed parole order, and that the Commonwealth Court's original jurisdiction could not be used to revive lapsed appeal rights. The Pennsylvania Supreme Court denied the petition on June 12, 2002, and also denied Petitioner's petition for allowance of appeal of the Commonwealth Court's dismissal order.

On September 12, 2002, Petitioner filed a petition for writ of habeas corpus in this Court asserting that the Board had erroneously calculated the maximum expiration date for his sentences.*fn2 (Docketed at 2:02-cv-07289.) Because Petitioner was incarcerated at SCI Green at the time he filed his petition, on November 21, 2002, the undersigned transferred the case to the United States District Court for the Western District of Pennsylvania. (Docketed at 2:02-cv- 02230.) In an Order dated January 29, 2004, Chief Judge Ambrose of the Western District of Pennsylvania adopted Magistrate Judge Ila A. Sensenich's R&R concluding that while it was unclear whether Petitioner exhausted available state court remedies or whether his claims were procedurally defaulted, Petitioner's claims were clearly meritless, and were thus dismissed with no certificate of appealability issued.On August 31, 2004, the United States Court of Appeals for the Third Circuit subsequently denied Petitioner's request for a certificate of appealability.

On March 21, 2005, Petitioner's CCP sentence expired. He is still incarcerated, however, serving his 1997 sentence, which will expire on February 28, 2023.

On December 5, 2008, Mr. Reid filed the instant Petition for Writ of Habeas Corpus (Doc. No. 1), arguing that the Board improperly calculated his remaining sentence after he was recommitted to continue serving the CCP sentence, and that he is being held past his maximum sentence.*fn3 (R&R at 5-6; Doc. No. 29.) The government responded to Mr. Reid's petition on August 13, 2009 (Doc. No. 23). Magistrate Judge Rapoport filed his R&R on October 27, 2009 (Doc. No. 29), and Petitioner filed his Objections to the R&R on November 9, 2009 (Doc. No. 30).

III. Discussion

A. Summary of Magistrate Judge's Report and ...

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