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Rivera v. Pennsylvania Board of Probation and Parole

United States District Court, Third Circuit

October 11, 2013

RAUL RIVERA, Petitioner.
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al., Respondents,

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, Magistrate Judge.

I. Introduction

The petitioner in this case, Raul Rivera, is a convicted murderer who was recommitted for a parole violation in 2010 following an incident in which he was convicted of lying to police. Rivera, 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 beyond the original maximum term of his sentence violates his constitutional rights. That parole board action, which Rivera attacks in this petition, is specifically authorized by state law, which expressly provides that parolees who violate the terms of their parole forfeit credit for the time served on parole as a penalty for their wrongdoing.

For the reasons set forth below, it is recommended that this petition be denied, since Rivera 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 pertinent facts in this case can be simply stated: Raul Rivera is a convicted murderer. On August 4, 1997, the Court of Common Pleas of Philadelphia County sentenced Rivera to an aggregate term of 7½ to 15 years for third degree murder and possessing instrument of Crime-Weapon. (Doc. 10, ¶1.)The original minimum and maximum release dates for Rivera on this murder and weapons conviction were January 9, 2005 and July 9, 2012, respectively. ( Id., ¶3.) Rivera was then paroled from this homicide conviction on April 9, 2007. ( Id., ¶4.) As a condition of his parole, Rivera acknowledged that if he was convicted of a new crime while on parole, the Board had authority, after an appropriate hearing, to recommit him to serve the balance of the sentence which he was serving with no credit for time at liberty on parole. ( Id., ¶5.)

Less than two years later, on February 2, 2009, police arrested Rivera on new criminal charges in Montgomery County, Pennsylvania. ( Id., ¶6.) Rivera was held on these charges, and the Parole Board lodged its detainer against Rivera for parole violations on February 3, 2009. ( Id., ¶¶7-9.) On February 8, 2009, Rivera waived his hearing rights and admitted to a technical parole violation, violating condition #1, leaving the district without permission of his parole officer. Based on his admission, the parole board recommitted Rivera as a technical parole violator. ( Id., ¶¶10-11.)

On October 15, 2009, Rivera pleaded guilty in the Court of Common Pleas of Montgomery County to the offense of False Identification to Law Enforcement Officer and was sentenced to serve 6 to 12 months in the county prison on this new conviction. ( Id., ¶¶ 12-14.) On October 23, 2009, the Court of Common Pleas of Montgomery County paroled Rivera from this sentence and Rivera was returned to a Pennsylvania state correctional institution on November 5, 2009 for service of his technical parole violation sentence on his prior murder conviction. ( Id., ¶¶15-16.)

The parole board then conducted a revocation hearing for Rivera relating to his latest conviction on April 2, 2010. Following that hearing, the board recommitted Rivera as a convicted parole violator for the offense of False Identification to Law Enforcement. A copy of this decision was mailed to Rivera on May 4, 2010. In this decision, the parole board also recalculated Rivera's maximum sentence date from July 9, 2012 to January 23, 2015 based on his return to custody as a convicted parole violator. This January 23, 2015 maximum release date calculation reflected that Rivera forfeited credit for the period he was at liberty on parole from April 9, 2007 (date of parole) to February 2, 2009 (date of arrest on the new criminal charges). The January 23, 2015 maximum release date calculation also reflected that Rivera did not receive any credit on his murder sentence parole violation for the period he was incarcerated on his new criminal charges since Rivera received credit on his new sentence for this period of incarceration. ( Id., ¶¶. 17-22.)

The revocation/recalculation decision mailed to Rivera on May 4, 2010, which set forth the January 23, 2015 maximum release date, contained a clause stating, "IF YOU WISH TO APPEAL THIS DECISION, YOU MUST FILE A REQUEST FOR ADMINISTRATIVE RELIEF WITH THE BOARD WITHIN THIRTY DAYS OF THIS ORDER." The parole board received an administrative appeal from Rivera challenging this revocation/recalculation decision on May 18, 2010. On August 16, 2010, the board mailed Rivera a response that denied his administrative appeal and affirmed the May 4, 2010 decision. Rivera did not further appeal the May 4, 2010 revocation/recalculation decision to any Pennsylvania court. ( Id., ¶¶23-27.)

Since the revocation of his parole, the board has reviewed and denied Rivera for re-parole several times, in 2011 and 2012. On both occasions, Rivera was denied parole due to his prior unsatisfactory parole supervision history and a risk and needs assessment, and assessment which indicated that Rivera presented a high level of risk to the community. ( Id., ¶¶28-30.)

On June 20, 2012, Rivera filed this petition for writ of habeas corpus. (Doc. 1) At bottom, Rivera's petition challenged the parole board's application of state law in this fashion which resulted in the extension of his parole release date beyond the initial term he would have served if he had complied with his parole supervision. (Id.) This matter has been fully briefed by the parties, and is now ripe for disposition.

For the reasons set forth below, it is recommended that the ...


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