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Freeman v. Wenerowicz

United States District Court, E.D. Pennsylvania

March 31, 2015

TRACEY FREEMAN, Petitioner,
v.
MICHAEL WENEROWICZ, et al. Respondents.

REPORT AND RECOMMENDATION

LYNNE A. SITARSKI, Magistrate Judge.

Presently before the Court is a pro se petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, by Tracey Freeman, an individual currently incarcerated at the State Correctional Institution in Graterford, Pennsylvania. For the following reasons, I respectfully recommend that the petition be DISMISSED for failure to exhaust state-court remedies.[1]

I. FACTS AND PROCEDURAL HISTORY

On October 30, 1992, Petitioner was sentenced to a term of 8.5 to 20 years' imprisonment for committing the crime of murder in the third degree. Commonwealth v. Freeman, No. CP-51-CR-0739031-1990 (Phila. Cty. Com. Pl.), Criminal Docket at 2. The original minimum and maximum dates for this sentence were January 1, 1999 and July 1, 2010, respectively. (Decl. of Rachel Macnamara, Resp.'s Attach. A ¶ 8, ECF No. 12-1). On June 30, 1999, Petitioner was paroled from this sentence. (Id. ¶ 9).

Petitioner was arrested on new criminal charges on June 21, 2004, and the Parole Board (the "Board") lodged a detainer against him that same day. (Id. ¶ 10). Those criminal charges were subsequently withdrawn on November 8, 2004, but Petitioner remained confined on the Board detainer until November 16, 2004, at which point Petitioner was again released on parole. (Id. ¶¶ 11-12).

On September 20, 2006, Petitioner committed a parole violation by absconding from his legally approved residence at the Eagleville Halfway Back Program. (Id. ¶ 13). The Board issued a warrant for his arrest. (Id. ¶ 14). Petitioner was arrested on that warrant on November 20, 2006, sixty-one days later. (Id. ). In a decision dated January 30, 2007, the Board recommitted Petitioner to serve twelve months back time as a technical parole violator for changing his residence without permission and for failing to successfully complete the Eagleville program. (Id. ¶ 15); see also (Resp.'s Ex. 5, ECF No. 12-2). Based on the sixty-one days he was delinquent, the Board re-computed his maximum sentence date to August 31, 2010. (Resp.'s Ex. 5).

Petitioner was re-paroled on September 17, 2008. (Decl. of Rachel Macnamara, Resp.'s Attach. A ¶ 16). Approximately one year later, on September 24, 2009, Petitioner absconded from parole by failing to report and by making himself unavailable. (Id. ¶ 18); (Resp.'s Ex. 8, ECF No. 12-2). Petitioner remained at large for 469 days, until he was arrested by the United States Marshal Task Force and the Philadelphia Fast Unit on January 6, 2011. (Resp.'s Ex. 8, ECF No. 12-2). At the time of Petitioner's arrest, he was in possession a firearm, 4.3 grams of marijuana, and a digital scale. (Id. ).

Petitioner was charged in new criminal proceedings for the possession offenses.[2] See Commonwealth v. Freeman, No. CP-51-CR-0000893-2011 (Phila. Cty. Com. Pl.), Criminal Docket 1-3. In a decision dated March 17, 2011, the Board detained Petitioner pending the disposition of these charges. (Resp.'s Ex. 10, ECF No. 12-2). In its detainer, the Board stated that following the resolution of Petitioner's new criminal charges, it would recommit him as a technical parole violator for multiple violations, including changing residence without permission and failure to report. (Id. ). Furthermore, the Board extended Petitioner's maximum sentence an additional 469 days, from August 31, 2010 to December 13, 2011, to account for his delinquency. (Id. ). Petitioner was instructed that, if he wished to appeal this decision, he had to file a request for administrative relief within thirty days. (Id. at 2). Petitioner did not file an appeal.

Petitioner was released on his own recognizance on March 29, 2011, however, he remained in custody pursuant to the Board's detainer. (Decl. of Rachel Macnamara, Resp.'s Attach. A ¶ 22). Upon the expiration of Petitioner's maximum sentence on December 13, 2011, the Board lifted its detainer against him. (Id. ¶ 24). Petitioner was then released to the custody of the Philadelphia County Prison to stand trial for the possession charges. (Resp's Ex. 14 ¶ 9, ECF No. 12-2).

On December 10, 2013, Petitioner pled guilty to one count of Possession of a Firearm by a Prohibited Person in violation of 18 Pa. Cons. Stat. § 6105(a)(1) and one count of Possession of an Instrument of a Crime with Intent to Employ it Criminally in violation of 18 Pa. Cons. Stat. § 907(a). (Resp.'s Ex. 11, ECF No. 12-2). He was sentenced to 2.5 to 5 years' imprisonment and a maximum of 4.5 years' probation, to run consecutively. (Id. ).

On February 11, 2014, Petitioner waived his right to a hearing on his revocation of parole. (Resp.'s Ex. 12, ECF No. 12-2). In this waiver, he acknowledged that he pled guilty to new criminal offenses punishable by imprisonment and that the conduct underlying those charges occurred while he was on parole. (Id. ). The Board lodged its detainer again on February 19, 2014. (Decl. of Rachel Macnamara, Resp.'s Attach. A ¶ 28).

In a decision dated April 17, 2014, and mailed April 25, 2014, the Board recommitted Petitioner as a technical parole violator per its March 17, 2011 decision and recommitted Petitioner as a convicted parole violator to serve twenty-four months back time for the possession offenses. (Resp.'s Ex. 13, ECF No. 12-2). Petitioner was deemed ineligible for re-parole until June 5, 2015, and his parole violation maximum date was recalculated to April 7, 2022. (Id. ).

Petitioner timely filed an appeal for administrative review on May 18, 2014. (Resp.'s Ex. 14, ECF No. 12-2). By letter dated September 30, 2014 and received October 8, 2014, Petitioner submitted a letter to the Board requesting to withdraw his appeal for review of the Board's April 17, 2014 decision. (Resp.'s Ex. 15, ECF No. 12-2). On November 5, 2014, the Board issued a letter deeming the appeal withdrawn. (Resp.'s Ex. 16, ECF No. 12-2). Petitioner replied via letter on November 11, 2014 that he never sent the October 8 letter and did not wish to withdraw his administrative appeal. (Traverse Ex. F, ECF No. 13). In a decision mailed December 29, 2014, the Board revised Petitioner's maximum sentence from April 7, 2022 to March 14, 2022, due to a calculation error. (Resp.'s Ex. 17, ECF No. 12-2). This decision advised Petitioner that he had until January 28, 2015, thirty days from the date of mailing, to appeal. (Id. ).

On September 4, 2014, Petitioner filed in federal court a petition for writ of habeas corpus pursuant 28 U.S.C. § 2241, contending that the Parole Board's recalculation of his maximum sentence date violated the Due Process clause, the collateral estoppel doctrine, the prohibition against cruel and unusual punishment, and the Double Jeopardy clause. (Pet., ECF No. 1). Following the District Court's order (ECF No. 2), he properly resubmitted these claims as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on September 19, 2014.[3] (Pet'r's pro se Hab. Pet., ECF No. 3). On December 29, 2014, the Commonwealth filed a Response, arguing that Petitioner's claims were unexhausted and, in any ...


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