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Kemmerer v. Gavin

United States District Court, M.D. Pennsylvania

October 3, 2014

KEITH KENNETH KEMMERER, Petitioner,
v.
SUPERINTENDENT GAVIN, et al., Respondents.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

I. Introduction

The petitioner, Keith Kemmerer, a former state prisoner incarcerated at the Waymart State Correctional Institution (SCI-Waymart), in Waymart, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254, challenging the denial of his release by the Pennsylvania Board of Probation and Parole.[1] (Doc. 1, Pet.) For the reasons that follow, the Court will deny the petition.

II. Relevant Factual and Procedural History

Respondents have provided the Court with a summary of Mr. Kemmerer's criminal convictions in the Court of Common Pleas of Lehigh County. (Doc. 12-1, Barkley Decl.) In September 1974, Mr. Kemmerer was sentenced to 10 to 23 months' incarceration after being convicted of Burglary, Commonwealth v. Kemmerer, No. 1088 of 1973 (Lehigh Ct. Com. Pl.). (Doc. 12, Answer.) In December 1974 he was sentenced to 2 years probation after being convicted for Possessing Instruments of Crime, Commonwealth v. Kemmerer, No. 1849 of 1974 (Lehigh Ct. Com. Pl.). ( Id. ) In 1975 Mr. Kemmerer was convicted of Aggravated Assault and Attempted Burglary. He was sentenced to 5 to 10 years' incarceration for each conviction, Commonwealth v. Kemmerer, Nos. 134 of 1975 and 1127 of 1975 (Lehigh Ct. Com. Pl.). ( Id. )

In November 1980 Mr. Kemmerer was convicted of two counts of Receiving Stolen Property. Commonwealth v. Kemmerer, Nos. 681 of 1980 and 682 of 1980 (Lehigh Ct. Com. Pl.) He received a sentence of 1 to 3 years' incarceration for each conviction. ( Id. ) In 1990, Mr. Kemmerer was sentence to time served by a District Justice after being convicted of Criminal Mischief. ( Id. )

On June 21, 1991, Mr. Kemmerer pleaded nolo contendere to Burglary and was sentenced to 2 to 5 years of imprisonment. Commonwealth v. Kemmerer, CP-39-CR-0002469-1990 (Lehigh Ct. Com. Pl.).[2] The same day he pled nolo contendere to Receiving Stolen Property and was sentenced to 1 to 3 years' confinement for this conviction. Commonwealth v. Kemmerer, CP-39-CR-0003058-1990 (Lehigh Ct. Com. Pl.). ( Id. )

On July 23, 1993, Mr. Kemmerer was released on parole from his two most recent Lehigh County Court of Common Pleas sentences. Commonwealth v. Kemmerer, CP-39-CR-0002469-1990 (Lehigh Ct. Com. Pl.) and Commonwealth v. Kemmerer, CP-39-CR-0003058-1990 (Lehigh Ct. Com. Pl.). ( Id. ) However, on November 9, 1995, his parole was revoked after a technical parole violation, his admitted unsuccessful discharge from Treatment Trends. (Doc. 12-1, Notice of Board Decision, ECF p. 7.) His parole violation maximum date was set as June 12, 1996. ( Id. )

In March 1997, Mr. Kemmerer was sentenced to 1 year probation after pleading guilty to one count of Obstructing Administration of Law or Other Governmental Function. Commonwealth v. Kemmerer, CP-39-CR-0003576-1996 (Lehigh Ct. Com. Pl.). (Doc. 12, Answer.) On October 21, 1998, his probation was revoked and he was sentenced to time served to 1 year of incarceration. ( Id. ) Less than a month later Mr. Kemmerer was sentenced to time served to 12 months, less a day, after pleading guilty to Disorderly Conduct. Commonwealth v. Kemmerer, CP-39-0002970-1998. ( Id. )

On June 27, 2002, Mr. Kemmerer was sentenced to two terms of imprisonment of not less then 10 years or more than 20 years in state prison after pleading guilty to two separate counts of burglary. Per his plea agreement, the sentences were to run concurrently. Commonwealth v. Kemmerer, CP-39-CR-0001374-2001 and CP-39-CR-0001475-2001 (Lehigh Ct. Com. Pl.); see also Kemmerer v. Lehigh Cnty. Courthouse, Civ. No. 3:CV-08-1690, 2009 WL 1032772 (M.D. Pa. Apr. 16, 2009). His maximum sentence date on this sentence is April 19, 2021. (Doc. 12-1, Pa. Department of Corrections Sentence Status Summary, ECF p. 9.)

On October 18, 2010, Mr. Kemmerer was transferred to a community corrections center (CCC) on prerelease by the Pennsylvania Department of Corrections (DOC). (Doc. 12, Answer.)

On April 8, 2011, the Board reviewed Mr. Kemmerer for parole release and ultimately denied him parole. (Doc. 12-1, Notice of Board Decision, ECF p. 13.) The Board cited the following reasons for its decision: (1) his risk and needs assessment indicating his level of risk to the community; (2) reports, evaluations and assessment/level of risk indicates your risk to the community; (3) his failure to demonstrate motivation for success; (4) his minimization/denial of the nature and circumstances of the offense(s) committed; and (5) the negative recommendation made by the prosecuting attorney. ( Id. ) The Board advised Mr. Kemmerer he would be reviewed again in October 2011 at which time they would review his file and consider whether he maintained a favorable recommendation for parole from the Department of Corrections and whether he maintained a clear conduct record. ( Id. )

On June 13, 2011, the DOC removed Mr. Kemmerer from prerelease status and returned him to a state correctional facility "after it was determined that his behavior in the community showed that he could not safely [be] managed in the community." (Doc. 12-1, Barkley Decl., ECF p. 5.)

On December 14, 2011, Mr. Kemmerer was again reviewed by the Board for parole and denied release. ( Id. , Notice of Board Decision, ECF p. 16.) The notice listed the following reasons in support of the decision to deny Mr. Kemmerer parole: (1) the negative recommendation made by the DOC; (2) his pre-release failure; and (3) reports, evaluations and assessments/level of risk indicated his risk to the community. The Board advised Mr. Kemmerer that he would be reviewed again in December 2012 at which time they would review his file and consider whether he received a favorable recommendation for parole from the DOC, whether he had maintained a ...


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