The opinion of the court was delivered by: Magistrate Judge Carlson
The Petitioner in this case, Steven Wilkinson, is a state parolee, and a criminal recidivist who violated his state parole on a rape charge by committing a gun-point sexual assault while on parole supervision. Wilkinson, who is proceeding pro se, has filed a petition for writ of habeas corpus which contends that the Parole Board's decision to extend his parole release date, and to refuse to credit him for the time served on his new criminal offenses, violates his constitutional rights. That Parole Board action, which Wilkinson attacks in this petition, is specifically authorized by state law, which expressly provides that parolees who violate the terms of their parole by committing new crimes on parole may not have their parole violation sentences run concurrently with the penalties imposed upon them for those new crimes.
For the reasons set forth below, we will deny this petition, since Wilkinson has not exhausted his state remedies and Wilkinson is not entitled to use a writ of habeas corpus to compel state parole officials to deviate from the parole outcome mandated by state law, and by his own repeated misconduct.
II. Statement of Facts and of the Case
The history of criminal conduct, parole violations, arrests, and imprisonment which has marked Steven Wilkinson's life began more than 20 years ago, in 1983, when Wilkinson was convicted in the Court of Common pleas of York County of rape and involuntary deviate sexual intercourse. (Doc. 15, Ex.1.) Wilkinson was sentenced to a term of 7 1/2 - to-15 years imprisonment for his role in this violent sexual assault. (Id.) Consequently, the original minimum and maximum parole dates for Wilkinson on these offenses were set by the Board at August 17, 1989 and February 17, 1997. (Id.) In fact, Wilkinson was paroled from this sentence on February 8,1990. (Id., Ex.2.)
Eighteen months later, on November 18, 1991, while he was serving his parole, local police in Cumberland County, Pennsylvania, arrested Wilkinson for new criminal charges involving illegal possession of firearms, receipt of stolen property, and the alleged gun-point rape of a woman. (Id., Ex.3). Based upon this new episode of armed, violent, sexually predatory conduct, the Board lodged a warrant against Wilkinson citing him for parole violations. (Id., Attachment #1 - Declaration of Carol Francavilla.)
Wilkinson was convicted of these state offenses on June 2,1992, when he pleaded guilty to Indecent Assault, and nolo contendere to Receiving Stolen Property and Firearms offenses. (Id., Ex.4.) The Court of Common Pleas of Cumberland County, Pennsylvania sentenced Wilkinson to a total term of three-to-seven years imprisonment for the new state convictions, (Id., Ex. 4), and on June 25, 1992, Wilkinson was returned to a Pennsylvania state custody. (Id., Attachment 1.) For its part, the Parole Board, lodged a warrant against Wilkinson for parole violations as a result of these new convictions on June 26, 1992, and notified Wilkinson in writing of its decision to recommit him as a convicted parole violator. (Id., Ex. 5.)
Wilkinson's armed criminal recidivism also came to the attention of federal authorities who charged Wilkinson on July 16, 1993, with federal firearms offenses. (Id., Ex. 6.) Wilkinson pleaded guilty to these federal offenses, pursuant to the terms of a plea agreement which recommended that Wilkinson's federal sentence run concurrently with the state offenses for Wilkinson's related state crimes. On November 29, 1993, the United States District Court for the Middle District of Pennsylvania accepted Wilkinson's guilty plea and sentenced Wilkinson to serve a total of 210 months in prison for this firearms offense. (Id., Ex. 7.) The federal court's sentencing order recommended that the federal sentence "run concurrently to both state matters." (Id., Ex. 7.)
While it appears that the state and federal sentences arising directly out of this November 1991 crime spree were served concurrently, the state Parole Board made a determination that Wilkinson's state parole sentence should not be served concurrently with these other state and federal jail terms. The Parole Board began communicating its judgments in Wilkinson's case to the Petitioner as early as April 21, 1994, when the Board mailed a decision to Wilkinson that rescinded its prior re-parole decision and October 17, 1999 maximum sentence date set forth in its November 18, 1992 decision. Instead, Wilkinson was now notified that he would be recommitted as a convicted parole violator once he was returned to federal custody. (Id., Ex. 8.) On October 18, 1994, Wilkinson was transferred to federal authorities to begin serving his 210 month federal sentence. (Id., Ex.9.)
While in federal custody, Wilkinson sought to challenge this parole action seeking to exercise jurisdiction over him once he completed his federal sentence. Specifically, on August 9, 2004, Wilkinson filed a petition with Pennsylvania's Commonwealth Court alleging that the Board relinquished jurisdiction over him by transferring him to federal custody and could not lodge a detainer against him for his original sentence. (Id., Exs. 10 and 11.) On June 13, 2005, Commonwealth Court rejected Wilkinson's petition, noting that as a convicted parole violator he was not entitled under state law to run his parole violation sentence concurrently with his federal sentence for this new criminal conduct. (Id., Ex. 13.)
Wilkinson completed service of his federal sentence and was returned to a Pennsylvania state correctional institution on September 17, 2009.(Id., Ex. 9.) Two weeks later, on October 1, 2009, the Board mailed a recalculation decision to Wilkinson that recalculated Wilkinson's maximum release date as December 11, 2015.(Id., Ex. 15.). This Parole Board decision reflected that Wilkinson received 281 days of credit on his original sentence for the period he was incarcerated from October 8, 1992 to July 16, 1993, and concluded that he became available to commence service of his parole violation sentence on September 8, 2009. (Id., Attachment 1.)
The Parole Board, however, did not calculate this parole violation sentence to run concurrently with Wilkinson's federal firearms sentence. The Parole did not follow this course because it concluded state law did not permit it to do so. Specifically, 61 Pa. C.S. § 6138 provided that, with respect to the order of sentences for convicted parole violators:
If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed shall precede the commencement of the new term imposed in the following cases:
(I) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution.
(ii) If a person is paroled from a county prison and the new sentence imposed upon him is to be served in the same county prison.
(iii) In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally ...