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Markel v. Pennsylvania Board of Probation and Parole

United States District Court, M.D. Pennsylvania

May 7, 2014

MICHAEL SCOTT MARKEL, Petitioner,
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al., Respondents.

MEMORANDUM

YVETTE KANE, District Judge.

Petitioner Michael Scott Markel ("Petitioner"), a state inmate incarcerated at the State Correctional Institution at Dallas, Pennsylvania, initiated this habeas corpus action pursuant to 28 U.S.C. § 2254. In the petition, he challenges the Pennsylvania Board of Probation and Parole's ("PBPP" or "Board") recalculation of his maximum sentence after his parole was revoked and he was recommitted as a convicted parole violator. The petition is ripe for consideration and, for the reasons that follow, will be denied.

I. Background

On February 18, 1998, Petitioner was sentenced by the York County Court of Common Pleas to a term of six to twelve years in prison for homicide by vehicle while driving under the influence. His minimum date was July 25, 2003, and his maximum date was July 25, 2009. On July 28, 2003, he was released on parole. (Doc. No. 10, Ex. A.)

On August 18, 2008, Petitioner was charged with violating the conditions of his parole (consumption of alcohol and use of drugs). (Id., Ex. B.) On September 15, 2008, he was recommitted to a state correctional institution for violating his parole conditions. (Id., Ex. C.) On October 8, 2008, new criminal charges were filed against Petitioner based on the criminal conduct occurring in August of 2008. (Id., Ex. D.) On July 25, 2009, the PBPP lifted the detainer placed on Petitioner on August 18, 2008, because the charges filed on October 8, 2008 were still pending as of that date. (Id., Ex. E.)

On January 25, 2010, Petitioner pled guilty to the new criminal charges in York County Court of Common Pleas. (Id., Ex. F.) On April 28, 2010, a Notice of Board Decision was issued by the PBPP recommitting Petitioner as a convicted parole violator, when available, pending completion of, or parole from the January 25, 2010 York County sentence. (Id., Ex. G.)

On June 7, 2012, Petitioner filed a counseled administrative appeal from the above decision with the PBPP. (Id., Ex. H.) On July 28, 2010, the Board responded to the appeal. (Id., Ex. I.) Petitioner did not file a petition for review from the PBPP's response with the Pennsylvania Commonwealth Court.

On April 7, 2010, Petitioner was released on parole from the January 25, 2010 York County sentence on the new charges. (Id., Ex. J.) On July 26, 2010, the PBPP established July 26, 2015 as Petitioner's parole violation maximum date based on his recommitment as a convicted parole violator. (Id., Ex. K.) Petitioner did not file an administrative appeal challenging the July 26, 2015 parole maximum date within thirty days of its mailing as required by the PBPP's regulation. See 37 Pa. Code § 73.1(b). On December 20, 2011 and January 10, 2012, the PBPP received correspondence from Petitioner claiming he was entitled to credit for periods of time during which he resided at community corrections centers. (Id., Exs. L, M.) On January 27, 2012, the PBPP dismissed the correspondence as untimely attempts to seek relief from the July 26, 2010 PBPP decision that established Petitioner's parole violation maximum date as July 26, 2015. (Id., Ex. N.) Petitioner did not file a petition for review in the Pennsylvania Commonwealth Court challenging the PBPP's January 27, 2012 response.

In the instant habeas corpus petition, Petitioner claims that he is being unlawfully held beyond his original maximum sentence date of July 25, 2009. He argues this is due to the PBPP's recalculation of his maximum sentence after his parole was revoked and he was recommitted as a convicted parole violator.

II. Discussion

Respondents contend that the pending petition must be dismissed for failure to exhaust state court remedies. In the alternative, they argue that Petitioner's claim is without merit.

A. Exhaustion

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state prisoner to challenge the "fact or duration"of his confinement. Leamer v. Fauver , 288 F.3d 532 (3d Cir. 2002). Habeas relief cannot be granted unless petitioner has exhausted all available state remedies on the federal claims raised in the petition. See 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson , 501 U.S. 722, 731-32, 111 S.Ct. 2546, 2554-2555, 115 L.Ed.2d 640 (1991); Slutzker v. Johnson , 393 F.3d 373, 379 (3d Cir. 2004). The principle of exhaustion which is founded on comity, requires a petitioner "to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts by invoking one complete round of the State's established appellate review process, " including petitioning for discretionary appeal. O'Sullivan v. Boerckel , 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732-1733, 144 L.Ed.2d 1 (1999); Holloway v. Horn , 355 F.3d 707, 714 (3d Cir. 2004). The petitioner bears the burden of establishing that all available state remedies have been exhausted. Parker v. Kelchner , 429 F.3d 58, 62 (3d Cir. 2005).

Pennsylvania parolees challenging the revocation of parole have state-court remedies available. The parolee must first file an administrative appeal. See 37 Pa. Code § 73.1(b)(1); Kester v. Pa. Bd. of Prob. and Parole , 148 Pa.Commw. 29, 34, 609 A.2d 622, 624 (1992) (citing Bronson v. Pa. Bd. of Prob. and Parole , 491 Pa. 549, 555-57, 421 A.2d 1021, 1024-25 (1980)). From there he can appeal to the Pennsylvania Commonwealth Court. See 42 Pa. Con. St. Ann. § 763; Borsello v. Colleran , 833 A.2d 1213, 1215 (Pa. Commw. 2003) ("Appeals of the Board's parole revocation and recommitment orders are within the exclusive appellate jurisdiction of the Commonwealth Court.") The third and final step is a petition to the Pennsylvania Supreme Court for allowance ...


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