United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, District Judge.
Calvin Garrett, an inmate at the State Correctional Institution in Houtzdale, Pennsylvania, has filed a pro se petition under 28 U.S.C. § 2254 challenging the decision of the Pennsylvania Board of Probation and Parole concerning the length of time to be served on a robbery offense after he was found to have violated parole. He makes the following claims. First, the Board violated due process when it failed to give him credit for time he spent in community corrections centers and inpatient programs. Second, the Board violated due process by adding two years to his maximum sentence on the robbery offense for a sentence on forgery charges. On this claim, Petitioner contends the forgery sentence was imposed to run concurrently, but the Board's action made the sentences run consecutively. He also argues that he was not given credit for the time he spent in custody solely on the Board's detainer and that his new maximum sentence date of February 5, 2018, illegally required him to serve in excess of the remaining balance of his maximum sentence. Third, Petitioner's procedural due process rights were violated when the Board changed Petitioner's original maximum sentence of March 21, 2013, to February 5, 2018 (later modified to September 11, 2017). Fourth, Petitioner received ineffective assistance of counsel from the attorney appointed to represent him at the hearing held to determine if Petitioner was to receive credit on his robbery sentence for the time he spent in community corrections centers and inpatient programs.
The parties' submissions provide the following relevant background. On December 27, 1995, Petitioner was sentenced in Philadelphia's court of common pleas to seven to twenty years for robbery. His minimum sentence date was March 21, 2000, and his maximum sentence date was March 21, 2013. (Doc. 19-2, ECF p. 2). Thereafter, on several occasions Petitioner was paroled, re-incarcerated for parole violations, and then reparoled.
On March 8, 2010, the Board reparoled Petitioner to a community corrections center. (Doc. 19-1, Board secretary's Decl. ¶ 22, and Doc. 19-2, ECF p. 27). At that time, Petitioner's maximum sentence date was October 20, 2015, based upon the number of times he had been re-incarcerated for parole violations. ( Id. ).
On August 3, 2011, Petitioner pled guilty to one count of forgery in the Court of Common Pleas of Luzerne County, Pennsylvania. On the same day, he was sentenced to one to two years' imprisonment. ( Commonwealth v. Garrett, No. CP-40-CR-727-2011, docket sheet, pp. 2 and 3). The sentence was imposed to run concurrently with any sentence Petitioner was "now serving." (Doc. 24-1, ECF p. 2).
By a decision recorded October 5, 2011, and mailed October 27, 2011, the Board recommitted Petitioner as a technical parole violator for leaving the district without permission and for two counts of drug use. He was also recommitted as a convicted parole violator based on the forgery conviction. Petitioner was ordered to serve twelve months on the technical violations and twelve months on the conviction, to run concurrently, for a total of twelve months backtime. His parole violation "max date" (or maximum sentence date) was also extended to February 5, 2018. (Doc. 19-2, ECF pp. 30-31).
On November 5, 2011, Petitioner filed a petition for administrative review contending he was entitled to credit on his sentence for time he spent in halfway houses, beginning in 2000. (Doc. 19-2, ECF p. 33). In response, (Doc. 19-2, ECF p. 36), the Board stated it would not address his claim for time spent in halfway houses in 2000 or 2003, as Petitioner had made the same claim in a petition for review in July 2009, which the Board had dismissed as an untimely challenge to its September 2003 decision. (Doc. 36-1, ECF pp. 2 and 4). Petitioner's current challenge was therefore viewed as a second or subsequent request that was barred by Pa. Code § 73.1(b) (3). (Doc. 19-2, ECF p. 36). On December 20, 2011, the Board did hold a hearing to determine if time spent in three community corrections centers in 2006, 2007 and 2010 should be credited to his sentence under Cox v. Pennsylvania Board of Prob. & Parole, 507 Pa. 614, 493 A.2d 680 (1985). The Board appointed counsel to represent Petitioner at the hearing.
By a decision recorded January 11, 2012, and mailed January 19, 2012, the Board denied the request for credit for the time spent in the community corrections centers. Based on the hearing, it made findings of fact and conclusions of law in support of its decision. (Doc. 19-2, ECF pp. 44-46).
Petitioner filed a pro se administrative appeal, which was received by the Board on February 2, 2012. (Doc. 19-2, ECF p. 48). The Board also interpreted this appeal as a challenge to Petitioner's new maximum sentence date of February 5, 2018. In a decision mailed on March 19, 2012, the Board denied the appeal on both grounds. (Doc. 19-2, ECF pp. 50-51).
On June 20, 2012, Petitioner filed a pro se petition for review in the Pennsylvania Commonwealth Court. (Doc. 19-1, ECF p. 10, docket sheet). This petition challenged the denial of credit and also asserted counsel was ineffective at the hearing and was otherwise ineffective. (Doc. 19-2, ECF pp. 56-57). On July 16, 2012, the commonwealth court quashed the petition as untimely since the deadline for filing was April 18, 2012. (Doc. 19-1, ECF p. 12). On July 30, 2012, Petitioner filed a petition to file a petition for review nunc pro tunc. (Doc. 19-1, ECF p. 10). On August 6, 2012, the commonwealth court denied the petition, finding no basis for permitting an untimely filing and noting that Petitioner had "not exlain[ed] the delay in filing his petition for review." (Doc. 19-1, ECF p. 14). On October 24, 2012, Petitioner filed in the Pennsylvania Supreme Court a petition for leave to file a petition for allowance of appeal nunc pro tunc. ( Garrett v. Pennsylvania Board of Prob. & Parole, No. 205 EM 2012). On February 11, 2013, the court denied the petition. (Doc. 21, ECF p. 32).
The respondent Board first argues that the petition should be dismissed because Petitioner procedurally defaulted on his state-court remedies by ...