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Todd Allen Dellahoy v. Michael Harlow

December 9, 2010

TODD ALLEN DELLAHOY, PETITIONER,
v.
MICHAEL HARLOW, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter

OPINION AND ORDER*fn1

Presently before the Court is Todd Allen Dellahoy's Petition For Writ of Habeas Corpus [ECF No. 11; see also Supplement, ECF No. 14], which he filed pursuant to 28 U.S.C. § 2254 when he was an inmate committed to the custody of the Pennsylvania Department of Corrections (the "DOC") at the State Correctional Institution in Mercer, Pennsylvania.*fn2 He asserts that the Pennsylvania Board of Probation and Parole (the "Board" or "Parole Board") unlawfully changed his judicially imposed maximum sentence date to December 23, 2011. As relief, he seeks an immediate release from DOC/Parole Board custody. Also pending before the Court are Dellahoy's motions for expedited relief [ECF Nos. 30-31], motion for resolution [ECF No. 32], motion for bond [ECF No. 29], and motion for a temporary restraining order [ECF No. 36].

I.

A. Background

Dellahoy was convicted of one count of burglary pursuant to a guilty plea he entered on November 18, 2004, at Criminal Docket No. CP-62-CR-0000413-2004 in the Court of Common Pleas of Warren County. On January 21, 2005, the Honorable Paul H. Millin sentenced him to a term of imprisonment of not less than 14 months or more than five years. [See Criminal Docket Sheet, Resp's Ex. 1, ECF No. 18-1 at p. 4]. The DOC calculated his minimum sentence date to be March 21, 2006, and his maximum date to be January 21, 2010. [DOC Sentence Status Summary, Resp's Ex. 2, ECF No. 18-1 at p. 19].

Dellahoy was paroled on October 2, 2006, and released to Gateway Rehabilitation Center in Erie, Pennsylvania, which is a residential drug and alcohol treatment program. [Order to Release On Parole, Resp's Ex. 3, ECF No. 18-1 at pp. 23-24]. He was expressly advised that as a condition of parole he had to comply with all municipal, county, state and Federal criminal laws and that:

If you violate[ ] a condition of your parole/reparole and, after the appropriate hearing(s), the Board decides that you are in violation of a condition of your parole/reparole you may be recommitted to prison for such time as may be specified by the Board.

If you are convicted of a crime committed while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were serving when paroled/reparoled, with no credit for time at liberty on parole. [Id. at p. 24 (emphasis added)]. See also 61 P.S. § 331.21a (repealed effective Oct. 13, 2009 and replaced by 61 Pa.C.S. § 6138, which is the same in all relevant respects).

On September 2, 2008, the Parole Board issued a Warrant to Commit and Detain Dellahoy, charging him with "failure to successfully complete the Gateway CPC Program," which was a violation of one of his other conditions of parole. He was arrested on that date. [Warrant and Technical Violation Arrest Report, Resp's Ex. 4, ECF No. 18-2 at pp. 2-3].

A few weeks later, on September 29, 2008, Dellahoy was arrested and charged with receiving stolen property. That criminal charge was filed in Erie County. The Parole Board continued its detainer pending resolution of this new criminal case against Dellahoy. [Criminal Arrest and Disposition Report, Resp's Ex. 5, ECF No. 18-2 at pp. 6-11].

On December 8, 2008, the Parole Board issued a decision in which it recommitted Dellahoy as a technical parole violator (for failure to successfully complete the Gateway CPC Program) to serve six months backtime when available "pending resolution of your outstanding criminal charges." [12/8/08 Notice of Board Decision, Resp's Ex. 6, ECF No. 18-2 at p. 13]. Dellahoy was advised that his "Parole violation max [wa]s 01/21/2010, subject to change if convicted of outstanding charges." [Id. (emphasis added)].

On February 17, 2009, Dellahoy entered a guilty plea in his Erie County criminal case and was convicted of one count of receiving stolen property. [Sentencing Order and Erie County Court of Common Pleas Criminal Docket No. CP-25-CR-0002651-2008, Resp's Ex. 7, ECF No. 18-2 at pp. 15-25]. After that conviction, he was charged with violating a condition of his parole (committing a crime). On May 7, 2009, Dellahoy admitted the violation and waived his revocation hearing. [Notice of Charges and Hearing, Resp's Ex. 8, ECF No. 18-3 at pp. 2-5].

On August 14, 2009, the Parole Board issued a Notice of Decision in which it deleted the previously imposed recommitment period for the technical parole violation and ordered that Dellahoy be recommitted to a state correctional institution as a convicted parole violator for the offense of receiving stolen property. As a result, Dellahoy's maximum sentence date was recalculated to December 23, 2011. [8/14/09 Notice of Board Decision, Resp's Ex. 9, ECF 18-3 at p. 7]. The Parole Board also expressly advised Dellahoy:

If you wish to appeal this decision, you must file a request for administrative relief with the Board within thirty days of this order. This request shall set forth specifically the factual and legal basis for the allegations. See 37 PA Code Sec. 73. You have the right to an ...


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