United States District Court, W.D. Pennsylvania
JAMES D. MOON, Petitioner,
JOHN E. WETZEL, et al. Respondents.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, Magistrate Judge.
It is respectfully recommended that the petition for a writ of habeas corpus be denied and that a certificate of appealability be denied.
Before the Court is a petition for a writ of habeas corpus [ECF No. 1] filed pursuant to 28 U.S.C. § 2254 by state prisoner James D. Moon. He is challenging the decision made on April 16, 2013, by the Pennsylvania Board of Probation and Parole (the "Board") that recommitted him to a state correctional institution as a convicted and technical parole violator and set his parole violation maximum sentence date at November 1, 2015. As relief, he seeks an order from this Court that invalidates the extension of his maximum sentence date (which had been September 15, 2013) and directs that he be released from custody.
A. Relevant Background
In their Answer and exhibits thereto, Respondents have demonstrated the following facts. In 2009, the Court of Common Pleas of Erie County sentenced Moon to a total sentence of 1 year, 6 months to 4 years of incarceration for committing two counts of Theft of Movable Property. On June 9, 2011, he was paroled by the Board. At that time, his controlling maximum sentence date was September 15, 2013.
On July 26, 2012, Moon was arrested by the Millcreek Police Department and charged with Statutory Sexual Assault, Aggravated Indecent Assault, Indecent Exposure, Indecent Assault, and Corruption of Minors, arising out of his relationship with a 14-year-old victim. On that same date, the Board lodged its warrant against Moon. The Board ordered that Moon be detained pending the disposition of his pending criminal charges.
On May 21, 2013, Moon was convicted in the Court of Common Pleas of Erie County of the crimes of Indecent Exposure (2 counts) and Corruption of Minors. On June 25, 2013, he was served with a notice of charges and hearing (PBPP-257N), notifying him of the charges against him, the date of the revocation hearing, and the name and address of the local public defender. On that same date, Moon signed a waiver of his right to a revocation hearing, waiver of his right to representation of counsel, waiver of his right to a panel hearing, and an admission form.
On July 25, 2013, the Board decided to revoke Moon's parole due to his new conviction and deny him credit for the time he was at liberty on parole. By a decision mailed August 16, 2013, the Board recommitted Moon as a convicted parole violator to serve 18 months of backtime. It also notified Moon that it recalculated his maximum sentence date from September 15, 2013, to November 1, 2015.
An inmate may file an appeal of a Board's revocation/recalculation decision within 30 days of entry of the challenged decision. 37 Pa. Code § 73.1. Moon did not file an administrative appeal of the Board's August 16, 2013, decision.
In the instant petition for a writ of habeas corpus, Moon alleges that the Board violated his federal constitutional rights and seeks an order from this Court that invalidates the extension of his maximum sentence date to November 1, 2015, and "readjusts" his maximum sentence date to September 15, 2013.
Respondents have filed an Answer to the petition. [ECF No. 15]. They argue, inter alia, that Moon's claims must be denied as procedurally defaulted because he failed to exhaust his state remedies. Moon did not file a reply. See Local Rule 2254(E)(2) (a petitioner "may file a ...