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Clapper v. Thompson

United States District Court, W.D. Pennsylvania

August 12, 2014

MATTHEW P. CLAPPER, Petitioner,
v.
BRIAN THOMPSON, et al., Respondents.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus be denied. It is further recommended that there is no basis upon which to grant a certificate of appealability.

II. REPORT

Petitioner, Matthew P. Clapper, a state prisoner incarcerated at the State Correctional Institution at Mercer County, Pennsylvania has petitioned for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2241 in connection with the denial of reparole by the Pennsylvania Board of Parole and Probation (the "Parole Board"). For the reasons that follow, it is recommended that the petition be denied.

A. Relevant Factual and Procedural History

On July 5, 2000, Petitioner was sentenced "to a term of incarceration of not less than fifty months nor more than one hundred months" in connection with his conviction for statutory sexual assault and aggravated indecent assault. (ECF No. 4-1, page 1). On October 18, 2000, Petitioner was sentenced "to a term of incarceration of not less than seventy-two months nor more than one hundred and forty four months" in connection with his conviction for aggravated assault, two counts of simple assault, and two counts of recklessly endangering another person. (ECF No. 4-2, page 1). In sum, Petitioner's effective minimum date of release was January 20, 2010, and Petitioner's effective maximum date for release is March 20, 2020. (ECF No. 4-3, page 1).

After Petitioner reached his minimum date of incarceration, he was considered for parole. Following an interview and a review of Petitioner's file, Petitioner's first application for parole was denied by the Parole Board on September 25, 2009. (ECF No. 7-1, page 6). The next year, Petitioner was again reviewed for parole; on this occasion the Parole Board granted parole. (ECF No. 7-1, page 9). Petitioner was paroled to a Community Corrections Residency on February 17, 2011. (ECF No. 4, page 2). However, by March 22, 2011, Petitioner "was returned to State Correctional Institution Albion, from the Community Correction Residency as a Technical Parole Violator, for possession of a[n] adult magazine." Id. "Petitioner pled guilty to the violation and expected the 18 months backtime hit, and [was] satisfied with the sentence." (ECF No. 4, page 4). On May 18, 2011, the Parole Board formally revoked Petitioner's parole. The Parole Board reasoned:

The Board finds that diverting you from confinement at this time poses an undo [sic] risk to the public safety.... for multiple technical parole violations... failure to successfully complete the Erie Community Corrections Residency... failure to refrain from possessing... sexually explicit [materials]... [and] early failure on parole.... While confined, you must comply with the institution's prescriptive program requirements and have no misconducts. You must participate in sex offender treatment.

(ECF No. 7-1, page 13). The revocation document mandated a minimum of "18 months backtime." Id.

Since the end of the 18 month backtime period, Petitioner has been considered for reparole on two occasions. On both June 27, 2012, and July 3, 2013, the Parole Board denied Petitioner's application for reparole. (ECF No. 7-1, page 16 and 19). The Parole Board enumerated the factors which they considered in denying reparole "following an interview with [Petitioner] and a review of [Petitioner's] file." Id.

Your Risk and needs assessment indicating your level of risk to the community.
The negative recommendation made by the Department of Corrections.
Reports, evaluations and assessments/level of risk indicates your ...

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