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Foster v. Pennsylvania Board of Probation and Parole

United States District Court, E.D. Pennsylvania

November 13, 2014

RODMEN R. FOSTER, Petitioner,
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al., Respondents.

REPORT AND RECOMMENDATION

HENRY S. PERKIN, Magistrate Judge.

Presently before the Court is the pro se Petition for Writ of Habeas Corpus filed by Rodmen R. Foster ("Petitioner") pursuant to 28 U.S.C. section 2254, and a pro se motion for summary judgment filed by Petitioner on June 19, 2014. On March 7, 2013, Respondents filed an Answer to Petition for Writ of Habeas Corpus and a Memorandum of Law in Support of Answer to Petition for Writ of Habeas Corpus. Petitioner's Reply was filed March 13, 2013, and an Amended Reply was filed March 25, 2013. For the reasons that follow, it is recommended that the Petition for Writ of Habeas Corpus be denied with prejudice and dismissed without an evidentiary hearing. It is further recommended that Petitioner's motion for summary judgment be denied.

I. FACTS AND PROCEDURAL HISTORY[1]

On May 6, 1992, Petitioner was sentenced to a term of two to seven years imprisonment for aggravated assault and criminal conspiracy by the Court of Common Pleas of Philadelphia County. On February 22, 1993, Petitioner was sentenced to an additional term of two years and nine months to ten years for robbery and criminal conspiracy. Because these terms of imprisonment were imposed to run consecutively, they were aggregated into a term of four years and nine months to seventeen years imprisonment. As calculated by the Pennsylvania Department of Corrections, the original minimum and maximum dates for these convictions were September 11, 1995 and December 11, 2007, respectively.

After serving approximately five years in prison, on January 30, 1997, the Pennsylvania Board of Probation and Parole ("the Board") paroled Petitioner from his sentence. On July 12, 2001, New Jersey authorities arrested Petitioner for new criminal charges. Following his release on bail, Petitioner reported to parole supervision staff, who took him into custody on July 16, 2001. The Board conducted a violation hearing on July 26, 2001, and recommitted Petitioner as a technical parole violator for violating the first condition of his parole (leaving the district without permission) by decision recorded August 27, 2001 and mailed September 5, 2001. Despite the recommitment, Petitioner's maximum sentence date remained December 11, 2007. The Board reparoled Petitioner on July 8, 2002.

On September 30, 2002, Petitioner pled guilty to theft by unlawful taking in the Superior Court of New Jersey, Gloucester County, stemming from the July 12, 2001 arrest. The Superior Court sentenced him to pay fines and costs. The Board detained Petitioner for the conviction on October 10, 2002, but ultimately decided not to recommit him as a parole violator for the conviction. On January 10, 2003, the Board continued Petitioner on parole.

On May 17, 2006, the Bensalem Police arrested Petitioner for new criminal charges, and detained him in the Montgomery County jail. The new criminal charges were subsequently docketed in the Court of Common Pleas of Montgomery County at CP-46-CR-0004194-2006. The Board lodged its detainer against Petitioner that same day. Although Petitioner posted bail from the new criminal charges on June 2, 2006, he remained confined on the Board detainer. On July 27, 2006, Petitioner was returned by authorities to a state correctional institution.

On February 1, 2007, Petitioner pled guilty to retail theft (CP-46-CR-0004194-2006), and received a sentence of six to twenty-three months. On June 15, 2007, the Board conducted a revocation hearing based on the Montgomery County conviction. On July 6, 2007, the Board conducted a violation hearing with respect to Petitioner's violation of the written conditions of his parole. By decision recorded August 1, 2007 and mailed August 17, 2007, the Board recommitted Petitioner as a technical parole violator for two counts of leaving the district without permission, and as a convicted parole violator for the Montgomery County retail theft offense when available. On September 21, 2007, the Court of Common Pleas of Montgomery County issued an order paroling Petitioner from the retail theft sentence (CP-46-CR-0004194-2006).

By decision recorded February 11, 2008 and mailed February 15, 2008, the Board recalculated Petitioner's maximum sentence date from December 11, 2007 to September 7, 2016 based on his recommitment as a convicted parole violator. In setting this new, extended parole release date, the Board determined, consistent with state law that, because Petitioner was recommitted as a convicted parole violator, he was not entitled to credit for any time that he was at liberty on parole. 61 Pa.C.S. § 6138(a)(2); Houser v. Pennsylvania Board of Probation and Parole, 682 A.2d 1365 (Pa. Cmwlth. 1996). Thus, the Board found that a total of 3, 610 days were subject to forfeiture by virtue of the fact that Petitioner was recommitted as a convicted parole violator. The Board credited Petitioner for some time periods he spent under parole supervision, concluding that he was entitled under state law to 92 days of credit on his parole violation maximum sentence for detention under a board warrant from October 10, 2002 to January 10, 2003, and was also entitled to an additional 244 days credit for detention from June 2, 2006 to February 1, 2007 because he posted bail on his new criminal charges on June 2, 2006. Crediting Petitioner for these time periods, and calculating his revised parole term from the date upon which he finished service of his new state sentence, the Board set Petitioner's maximum extended parole release date at September 7, 2016.

Petitioner challenged the Board's action in state court by filing a petition for administrative relief from this decision pursuant to 37 Pa. Code § 73.1. More specifically, on March 5, 2008 and March 6, 2008, the Board received requests for administrative relief from Petitioner challenging the February 11, 2008 decision, including the Board's authority to recalculate his maximum sentence date to September 7, 2016. On April 15, 2008, the Board mailed a response denying Petitioner's requests for administrative relief, and affirming the September 7, 2016 maximum sentence date calculation. Petitioner appealed the denial of his requests for administrative relief by filing a petition for review with the Commonwealth Court of Pennsylvania on May 5, 2008. Following briefing by both parties, the Commonwealth Court issued an opinion and order on October 20, 2008, which affirmed the Board's calculation of Petitioner's parole violation maximum date. Dissatisfied with this outcome, Petitioner filed a petition for allowance of appeal in the Supreme Court of Pennsylvania, which was denied on August 18, 2009.

On August 31, 2009, Petitioner filed a petition for writ of habeas corpus in United States District Court for the Middle District of Pennsylvania. See Foster v. Varano, Civil Action No. 09-1691, Dkt. No. 1. In so doing, Petitioner averred that the Board's decision to extend his parole release date beyond the original maximum term of his sentence violated his constitutional rights. See Foster v. Varano, Civil Action No. 09-1691, Dkt. Nos. 1 and 3. In a Report and Recommendation dated March 15, 2010, United States Magistrate Judge Martin C. Carlson recommended that the habeas petition be denied. See Foster v. Varano, Civil Action No. 09-1691, Dkt. No. 27. More specifically, after determining that Petitioner had satisfied the exhaustion requirement by submitting "the gist of his complaints to the state courts for consideration, " Magistrate Judge Carlson found that the habeas "petition fails because [Petitioner] has not identified state conduct in this case which violates the Constitution or laws or treaties of the United States' and led to a fundamental defect which inherently resulted in a complete miscarriage of justice in a fashion which was completely inconsistent with rudimentary demands of fair procedure." See Foster v. Varano, Civil Action No. 09-1691, Dkt. No. 27 at 11.

In recommending denial of the habeas petition, Magistrate Judge Carlson reasoned as follows:

[I]t is well-settled that [t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence'... [and] the Pennsylvania parole statute does not create a liberty interest in the right to be paroled.... Therefore, [Petitioner] may not premise his habeas petition on a claim of some constitutional entitlement to parole.
Recognizing this fact, in this case [Petitioner]'s petition attacks another aspect of the parole process: the fact that, under certain circumstances, state law calls for the forfeiture of time spent on parole by criminal recidivists like the petitioner who violate their parole supervision.... Thus, at bottom, [Petitioner]'s petition launches a constitutional challenge to the entire structure of Pennsylvania's parole statute. The difficulty with this claim is that it is well-established that this aspect of Pennsylvania's parole statute is constitutional.... Indeed, for the past twenty-five years federal courts have expressly considered the provision of state law challenged by [Petitioner], which permits the recalculation and extension of parole release dates for recidivists who violate the terms of their release, ...

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