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Kevin Luster, Aka andrew Luster v. Superintendent of Sci Mercer Et. Al

May 17, 2011

KEVIN LUSTER, AKA ANDREW LUSTER, PETITIONER,
v.
SUPERINTENDENT OF SCI MERCER ET. AL., RESPONDENTS.



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

MEMORANDUM and ORDER

Kevin Luster an inmate at the State Correctional Institution at Mercer has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

In his present petition, Luster does not seek to challenge his myriad of criminal convictions but rather the fact that he has been recommitted as a convicted parole violator as a result of his December 24, 2009 conviction of a summary offense committed while on parole. For this reason a review of the petitioner‟s convictions and parole releases is set forth.

On October 10, 1978, he was sentenced to four concurrent 10 to 20 year sentences after being convicted of rape, involuntary deviate sexual intercourse, robbery and burglary at No. 7802294.*fn1 On that same date he was sentenced to five concurrent 5 to 10 year sentences on five burglary convictions at No. 78002523A and another 5 to 10 year sentence for burglary at No. 780002525. On April 26, 1988, he was constructively paroled from No. 7802294, his first sentence, to commence serving the sentence imposed at Nos. 78002523A and 780002525.*fn2 On April 26, 1993 he was paroled on Nos. 78002523A and 780002525 with a maximum sentence date of April 26, 1998.*fn3

On May 20, 1994, Luster was convicted of burglary and possession of instruments of crime and sentenced to a 3 to 10 year period of incarceration at No. 9401905.*fn4 That same date he was sentenced to a concurrent 3 to 10 year sentence for burglary, theft by unlawful taking or disposition and receiving stolen property at No. 9402252*fn5 ; to 6 to 12 months for receiving stolen property at No. 9402931*fn6 ; to 1 to 5 years for receiving stolen property at No. 9402881*fn7 ; to 1 to 5 years for receiving stolen property at No. 9402782*fn8 and to 6 months to 1 year and 1 day for receiving stolen property at No. 9402785.*fn9

On September 20, 1994, petitioner was sentenced to 4 to 20 years on charges of Burglary at No. 9404244*fn10 ; to a concurrent 4 to 20 years for burglary at No.9404246*fn11 ; to a concurrent 4 to 20 years for burglary at No. 9407343*fn12 ; to 4 to 20 years for burglary at No. 9405051*fn13 and to 6 to 23 months for credit card violations and receiving stolen property at No.9404356*fn14.

On August 11, 1994 and April 6, 1995 he was recommitted as a convicted parole violator and on July 5, 1995 his parole maximum date was established at September 20, 2004.*fn15 On February 9, 1999 he was released on constructive parole from No. 7802294 and released on parole on June 30, 2003 at Nos. 9407343, 9405051, 9404244, 9404246, 9401905, 9402252, 9402881, 9402782 and 9402931 with a maximum sentence date of January 9, 2019.*fn16

On February 12, 2004, Luster was recommitted as a technical parole violator for violating the conditions of his parole.*fn17

On April 25, 2005 he was convicted of burglary, theft by unlawful taking, receiving stolen property and criminal mischief and sentenced to 27 to 60 months at No. 200400343.*fn18

On August 30, 2005, Luster was recommitted as a convicted parole violator at No. 200400343 and his maximum sentence expiration date was established as October 20, 2020.*fn19

On June 27, 2007, he was released on constructive parole from Nos. 9407343, 9405051, 9404244, 9404246, 9401905 and 9402252 and his maximum parole date on these sentences was set at October 20, 2020. *fn20

On August 27, 2009, petitioner was released on parole on No. 200400343 with a maximum sentence expiration on that sentence of August 13, 2010.*fn21

While on parole, the petitioner was convicted of disorderly conduct on December 24, 2009 and sentenced to time served.*fn22 As a result of this conviction, Luster was recommitted as a technical parole violator on March 19, 2010*fn23 and his sentence maximum date at Nos. 9407343, 9405051, 9404244, 9404246, 9401905 and 9402252 was established as November 6, 2020.*fn24

On October 18, 2010, the petitioner‟s application for release on parole was denied with an advisory that he could file a new application one year from that date.*fn25 A petition for review was filed in the Commonwealth Court and on November 29, 2010 the latter court concluded that the decision to grant or deny parole rests with the discretion of the Pennsylvania ...


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