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Brown v. Glunt

United States District Court, Third Circuit

April 1, 2013

NATHANIEL BROWN, AP-7647, Petitioner,
v.
STEVEN R. GLUNT, et al., Respondents.

REPORT and RECOMMENDATION

ROBERT C. MITCHELL, Magistrate Judge.

I. Recommendation:

It is respectfully recommended that the petition of Nathaniel Brown for a writ of habeas corpus be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.

II. Report:

Nathaniel Brown, an inmate at the State Correctional Institution at Houtzdale has presented a petition for a writ of habeas corpus. Brown is presently challenging his re-incarceration as a convicted parole violator to serve the remainder of a five to twenty year sentence imposed by the Court of Common Pleas of Allegheny County, Pennsylvania on September 24, 1982 following his plea of guilty to charges of burglary, receiving stolen property, escape and simple assault at No. CP-8106265A.[1]

In his petition, Brown contends:

The petitioner is not challenging the conviction as imposed by the Court of Common Pleas of Allegheny County, PA. but is challenging the Board's actions in recommitting him as a convicted parole violator after he has been recommitted as a technical parole violator where it affects time credit under 61 Pa.C.S. ยง 331.21a(b) and also denied him due process under the Fourteenth Amendment subjects him to double jeopardy under the Fifth Amendment and cruel and unusual punishment under the Eighth Amendment.[2]

Thus, petitioner's procedural parole history becomes critical. As noted above, the petitioner was sentenced on September 24, 1982 to a five to twenty year period of incarceration. As set forth in the declaration of John Janis of the Pennsylvania Board of Probation and Parole, [3] and as the supporting exhibits demonstrate, following his reception into the penal system, Brown's minimum sentence was set to expire on August 12, 1988 and his maximum sentence expiration date was calculated as August 12, 2003.[4] On August 12, 1988 he was released on parole with a commitment credit of 11 months and 3 days.[5] On August 8, 1990 he was recommitted as a convicted parole violator to serve a total of 24 months backtime, and his maximum release date was set at August 8, 2005.[6] On August 8, 1992 he was paroled to a detainer with a maximum sentence expiration date of August 8, 2005.[7] Following Brown's release from custody, on November 30, 1994 he was again recommitted as a convicted parole violator to serve thirty-six months backtime with a sentence maximum expiration date of November 30, 2007.[8] Brown was again paroled to a detainer on November 30, 1994 with a November 30, 2007 maximum sentence expiration date.[9] He then absconded and on September 3, 2007 was arrested in Ohio on local charges and respondent lodged a detainer. On September 21, 2007, Brown was returned to Pennsylvania authorities and on November 2, 2007, petitioner was recommitted as a technical parole violator with a maximum sentence expiration date of March 1, 2009.[10] On March 1, 2009 he was released but as a result of other criminal offenses occurring in 2006 for which he was incarcerated on March 1, 2010, parole was again revoked and the petitioner returned to custody to serve the balance of his original sentence with an expiration date of April 15, 2019.[11]

While much of the confusion arises as a result of Brown repeatedly committing offenses while on parole, respondents set forth in their memorandum that:

The April 15, 2019 max date reflects that: (a) Brown forfeited credit for the period he was at liberty on parole from December 11, 1998 to September 5, 2007; (b) Brown received 183 days of credit on his original sentence for the period he was incarcerated from September 5, 2007 to March 6, 2008; (c) Brown did not receive credit on his original sentence for the periods he was confined on both the new criminal charges and the Board detainer from March 6, 2008 to March 1, 2009 or from March 26, 2009 to October 26, 2009; (d) Brown did not receive credit on his original sentence for the period he was not incarcerated on the Board detainer between March 1, 2009 and March 26, 2009 and (e) Brown became available to commence service of his original sentence again on October 26, 2009.

The challenge which Brown makes to the calculation of his sentence was the subject of an administrative appeal, and then an appeal to the Commonwealth Court which Court in a Memorandum filed on May 23, 2011 wrote:

We begin with Brown's first contention that his maximum sentence date was incorrectly calculated. Brown's primary argument in this regard stems from the effective date of his original sentence, which was calculated nearly thirty years ago. Brown argues that since he was sentenced on September 24, 1982, and received a credit of eleven months and three days, the original effective date of his sentence should have been August 27, 1981.7 However, this Court has repeatedly held that the Department of Corrections, not the Board, is responsible for calculating the minimum and maximum terms of prisoners committed to its jurisdiction... Thus, we agree with Counsel that Brown's claim regarding his maximum sentence date is without merit.
7 In his no-merit letter, Counsel noted that Brown was serving another sentence at that time and was not available to begin serving his original sentence until July 18, 1984. Counsel further noted that Brown's credit of eleven months and three days was properly applied to this date
With respect to Brown's contention that he was not under Board's supervision when he committed his subsequent offense, we note that the record reveals that Brown committed his latest offenses in 2006, during the time he was on parole and under the Board's supervision. The fact that Brown may not have been taken into physical custody until ...

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