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Cabbagestalk v. Board of Probation and Parole

United States District Court, W.D. Pennsylvania

January 22, 2015

MARVIN CABBAGESTALK, Petitioner,
v.
BOARD OF PROBATION AND PAROLE and THE PENNSYLVANIA STATE ATTORNEY GENERAL, Respondents.

MEMORANDUM OPINION AND ORDER

CYNTHIA REED EDDY, Magistrate Judge.

Petitioner, Marvin Cabbagestalk ("Cabbagestalk"), a state prisoner incarcerated at the State Correctional Institution - Benner Township, in Bellefonte, Pennsylvania, has petitioned for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in connection with the recalculation of his maximum sentence date by the Pennsylvania Board of Parole and Probation (the "Board"). Cabbagestalk does not challenge the revocation of his parole, but rather the Board's authority to recalculate his parole maximum date and the calculation of that date. The Board argues that the Petition should be dismissed because Cabbagestalk has failed to exhaust state-court remedies and because it has no merit in any event. For the reasons discussed below, the Court will deny the Petition because Cabbagestalk has procedurally defaulted on his claims.[1]

Relevant Factual and Procedural History

On November 19, 1998, Cabbagestalk was sentenced in the Court of Common Pleas of Allegheny County to a term of four to eight years after being convicted of Robbery. This sentence is being served at Department of Corrections' inmate number DU-6337. The original minimum and maximum dates for this sentence were October 3, 2001 and October 3, 2005, respectively. (ECF No. 12-1, Exh. 1.)

On October 28, 2002, Cabbagestalk was granted parole. On November 2, 2003, Pittsburgh Police arrested Cabbagestalk for new criminal charges for an incident involving firearms. ( Id. at Exh. 2.) On that same day, the Board lodged a detainer against Cabbagestalk for parole violations based on the new criminal charges. ( Id. at Exh. 5.) Cabbagestalk was returned to State Correctional Institution ("SCI") Pittsburgh on November 10, 2003. ( Id. at Exh. 3.) Based on the November 2, 2003 incident, Cabbagestalk was charged with multiple firearms and driving offenses in the Court of Common Pleas of Allegheny County at CP# XXXXX-XXXX. ( Id. at Exh. 4.)

On April 20, 2004, a federal grand jury sitting in the United States District Court for the Western District of Pennsylvania returned a one-count Indictment against Cabbagestalk charging him with Possession of A Firearm By A Convicted Felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). ( Id. at Exh. 6.)

On June 30, 2004, Cabbagestalk was transferred by writ from SCI-Pittsburgh to federal custody. He appeared in federal court and was ordered detained on the new federal charges. He did not post bail. On that same day, he was returned to SCI-Pittsburgh. ( Id. at Exh. 3.)

On August 3, 2004, the criminal charges filed in the Court of Common Pleas of Allegheny County at CP# XXXXX-XXXX were withdrawn. ( Id. at Exh. 4.)

Cabbagestalk was transferred from SCI-Pittsburgh to federal custody by writ on September 29, 2004. On that day, he pled guilty in federal court to Possession of a Firearm by a Convicted Felon. He was returned to SCI-Pittsburgh on September 29, 2004. ( Id. at Exh. 3.)

On November 15, 2004, the Board conducted a revocation hearing on Cabbagestalk's new federal conviction. ( Id. at Exh. 7.)

On January 19, 2005, by writ Cabbagestalk was transferred from SCI-Greene, where he had been incarcerated since January 18, 2005, to the Allegheny County Jail. ( Id. at Exh. 3.) The following week, on January 26, 2005, Cabbagestalk was sentenced in federal court for Possession of a Firearm by a Convicted Felon to a term of imprisonment of 120 months in the custody of the U.S. Bureau of Prisons followed by a three-year term of supervised release. ( Id. at Exh. 8.) He was returned to SCI-Greene on January 27, 2005. ( Id. at Exh. 3.)

By decision mailed February 24, 2005 (recorded 2/17/2005), the Board recommitted Cabbagestalk as a convicted parole violator, when available, for the offense of Possession of a Firearm by a Convicted Felon. ( Id. at Exh. 9.) The revocation decision did not recalculate the maximum sentence for Cabbagestalk's sentence at his DU-6337 sentence because he was required to serve his new federal prison sentence before he could commence service of his original sentence. ( Id. at Attachment A.)

On October 3, 2005, the Board released Cabbagestalk due to the expiration of his original maximum sentence date. ( Id. at Exh. 3.) He began serving his federal sentence on that date. Cabbagestalk received prior jail credit on his federal sentence from November 2, 2003, to October 2, 2005. ( Id. at Exh. 10.)

On November 4, 2005, while Cabbagestalk was in federal custody, the Board re-lodged a detainer. ( Id. at Exh. 11.) Cabbagestalk completed his federal sentence on August 13, 2013. ( Id. at Exh. 10.) As a result of the Board's detainer, he was returned to SCI-Pittsburgh on August 25, 2013. He was ...


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