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David S. Johnson v. Ms. Marirosa Lamas

February 22, 2012


The opinion of the court was delivered by: Magistrate Judge Mitchell


Petitioner, David S. Johnson, an inmate incarcerated in the State Correctional Institution at Rockview, Pennsylvania, brings this petition for a writ of habeas corpus in accordance with 28 U.S.C. § 2254, challenging the May 25, 2010 decision of the Pennsylvania Board of Probation and Parole ("the Board") to revoke his parole. Petitioner claims that his parole was illegally revoked because his original maximum sentence date expired while he was incarcerated in Maryland. For the reasons that follow, the petition will be denied and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Procedural History

On February 28, 1985, Petitioner was sentenced in the Court of Common Pleas of Allegheny County, Pennsylvania to 5 to 10 years' imprisonment for his conviction on charges of burglary, receiving stolen property and possessing instruments of crime at No. CC 6331 of 1984. On March 17, 1989, he received an additional sentence of 21/2 to 5 years' imprisonment on charges of escape at No. CP 1556 of 1988 in the Court of Common Pleas of Westmoreland County. Thus, on September 16, 1992, he had an aggregate sentence of 71/2 to 15 years' incarceration and on that date, he was released on parole. As of September 16, 1992, Petitioner's maximum sentence date was September 16, 1999. (Answer Ex. 1.)*fn1

On July 10, 1995, Petitioner was arrested on new criminal offenses (burglary, resisting arrest, possessing burglary tools, theft, destruction of property and felony theft by scheme) in Allegany County, Maryland. (Answer Ex. 2.) On August 20, 1997, after a second trial (following a reversal by the Court of Special Appeals of the judgment of the Circuit Court in his first trial), Petitioner was convicted of various crimes and on August 21, 1997, he was sentenced to a total of 24 years and 120 days' incarceration. (Answer Ex. 3.) On March 10, 2010, Petitioner was released from his Maryland sentence and returned to a Pennsylvania state correctional institution. (Answer Ex. 4.)

On May 6, 2010, Petitioner signed a waiver of his right to counsel with respect to his parole revocation hearing. (Answer Ex. 5.) On May 18, 2010, a parole revocation hearing was scheduled at the State Correctional Institution at Pittsburgh. Petitioner indicated that he wished to have counsel represent him. Because it was primary election day, the Office of the Public Defender was closed that day. The panel offered Petitioner the choice of either continuing the hearing that day without counsel or requesting a continuance to a later date. Petitioner walked out of the room. The panel continued the hearing in Petitioner's absence and concluded that his parole should be revoked. (Answer Ex. 6.)*fn2

On May 25, 2010, Petitioner was recommitted as a convicted parole violator. As a result of his recommitment as a convicted parole violator, Petitioner's parole violation maximum date was established at October 25, 2015. (Answer Ex. 7.)

On June 28, 2010, Petitioner filed a counseled administrative appeal of the parole revocation decision. (Answer Ex. 8.) On August 23, 2010, the administrative appeal was denied. (Answer Ex. 9.)

On September 21, 2010, Petitioner filed a counseled petition for review in the Commonwealth Court of Pennsylvania's appellate jurisdiction. (Answer Ex. 10.) On October 19, 2010, Petitioner, through counsel, withdrew the petition for review that was filed in the Commonwealth Court, which had been docketed at No. 1961 CD 2010. (Answer Ex. 11.) On October 21, 2010, the petition for review was marked discontinued in the Commonwealth Court. (Answer Ex. 12.)

Petitioner also states that, on June 6, 2010, he mailed a petition for habeas corpus relief to the Court of Common Pleas of Allegheny County, in which he raised the issue that he did not owe any time on his sentence to the state of Pennsylvania and that he was being held beyond the maximum expiration date of any term of sentence previously owed to the state of Pennsylvania.*fn3

He further states that the Court of Common Pleas disregarded his wishes and treated the matter as a petition pursuant to the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-46 (PCRA). The docket sheet for Petitioner's Allegheny County conviction, No. 6331 of 1984, reflects that the court received his filing on June 18, 2010; that on October 8, 2010, Judge Durkin appointed Charles Robert Pass to represent Petitioner and file an amended petition; that Pass moved to withdraw as counsel on October 18, 2010; that this motion was granted on November 8, 2010; that Judge Durkin ordered Petitioner to notify the court whether he intended to continue with his PCRA petition pro se; that Judge Durkin filed a Notice of Intention to Dismiss PCRA Petition on January 4, 2011; that Judge Durkin entered an order denying the PCRA petition on February 9, 2011; and that on March 3, 2011, Petitioner filed a Notice of Appeal.

On April 6, 2011, Petition filed a petition for writ of mandamus in the Court of Common Pleas, which was assigned civil action No. GD 11-7047. He sought to have the state court order the Director of the Department of Court Records and Judge Durkin to treat his petition as a habeas petition and not as a PCRA petition. On May 3, 2011, Administrative Judge O'Brien entered an order dismissing the petition for writ of mandamus as a frivolous collateral attack on Judge Durkin's order.

On May 23, 2011, Petitioner filed a notice of appeal in the Pennsylvania Commonwealth Court, which was docketed at No. 1975 CD 2011. According to the docket sheet, on June 17, 2011, the court sent the appeal back to Petitioner for correction because he had not submitted the $73.50 filing fee or a motion to proceed in forma pauperis and he had not served his notice of appeal on the trial judge and the appellees. The docket further reflects that, on June 24, 2011, Petitioner partially complied with this order, but did not fully comply. Thus, on July 8, 2011, the Commonwealth Court issued an order dismissing the appeal for his failure to comply with the correction notice dated June 17, 2011.

Petitioner then initiated the pending action in this Court by filing a motion to proceed in forma pauperis on January 11, 2012 and after it was granted the petition was filed on January 13, 2012 (ECF No. 2). On February 10, 2012, Respondents filed an answer. They contend that: 1) Petitioner failed to exhaust his state court remedies by withdrawing his appeal of the Board's decision from the Commonwealth Court on October 19, 2010; 2) his failure to properly present and exhaust his state court remedies constitutes a procedural default barring his claim from review in federal court and he fails to meet any exception to the procedural bar; 3) his petition is untimely because he filed it more than one year after the Board's May 25, 2010 decision that revoked his parole; and 4) the claim is without merit in any event because the Pennsylvania parole statute allows the Board to recommit parolees for crimes ...

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