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Rambert v. Overmyer

United States District Court, W.D. Pennsylvania

February 1, 2018

ERIC X. RAMBERT, Petitioner,
v.
MICHAEL OVERMYER, Warden, et al., Respondents.

          David S. Cercone District Judge

          REPORT AND RECOMMENDATION

          Lisa Pupo Lenihan United States Magistrate Judge

         I. RECOMMENDATION

         For the reasons that follow, it is respectfully recommended that the Petition for Writ of Habeas Corpus filed by Petitioner Eric X. Rambert (ECF No. 9) be denied, that a Certificate of Appealability be denied, and that his Motion for a Temporary Restraining Order or Preliminary Injunction (ECF No. 17) also be denied.

         II. REPORT

         Before the Court is a Petition for Writ of Habeas Corpus filed by Petitioner Eric X. Rambert (“Petitioner”) pursuant to 28 U.S.C. § 2241. (ECF No. 9.) Petitioner is currently incarcerated at the State Correctional Institution in Fayette, Pennsylvania, and he seeks habeas relief based on a claim that the Pennsylvania Board of Probation and Parole (“the Board”) is improperly requiring him to serve his unexpired maximum sentence of June 2, 2033. For the following reasons, the Petition for Writ of Habeas Corpus should be denied along with the Motion for a Temporary Restraining Order or Preliminary Injunction, which is very similar to the allegations in his habeas petition: aggregation of sentences, being held under false imprisonment and unlawful restraint.

         A. Background

         On November 21, 1983, Petitioner pled guilty to rape and burglary in the Court of Common Pleas of Philadelphia County. (ECF No. 14-3, pp.73-75, Ex. C, Sentence Status Summary). He was sentenced by Judge McCrudden to a ten (10) to twenty-five (25) year term of imprisonment, effective June 2, 1983. Id.

         On November 10, 1987, while incarcerated for the prior crimes, Petitioner was found guilty by Judge Dauer of the Court of Common Pleas of Allegheny County of assaulting another inmate, rioting, and criminal conspiracy. Id. Judge Dauer sentenced Petitioner to a six (6) to twenty-five (25) year term of imprisonment, to run consecutively with Petitioner's prior sentence. Id. Accordingly, the Department of Corrections (“DOC”) aggregated Petitioner's sentences, resulting in a June 2, 1999 minimum date and a June 2, 2033 maximum date.

         On April 19, 2016, the Board of Probation and Parole reviewed, and denied, Petitioner's application for parole and informed him that he is “to serve his unexpired maximum sentence 06/02/2033, or to be reviewed earlier, if recommended by department of correction/county prison staff due to appropriate adjustment and program completion.” (ECF No. 9-1, p.2, Ex. A, Notice of Board Decision.)[1]

         B. Discussion

         Petitioner claims that the Board is improperly requiring him to serve an aggregate sentence of sixteen (16) to fifty (50) years of imprisonment. While his Petition is somewhat confusing, he appears to argue that his 10-year minimum sentence stemming from his 1983 case expired on June 2, 1993; and, after that, he should have been “constructively” paroled on his original sentence while starting his 1987 sentence of six (6) to twenty-five (25) years. He argues that he simultaneously served the remaining fifteen (15) years of his 1983 sentence during this time, and but for Respondents improperly denying him constructive parole, his current maximum should be June 2, 2018, not June 2, 2033, as is currently recorded.

         Petitioner made a similar challenge to his sentence calculation in a Petition for Writ of Habeas Corpus that he filed in 2011 in the Middle District of Pennsylvania, docketed at CA No. 3:CV-11-1370, during which time he was incarcerated in the State Correctional Institution, Coal Township, Pennsylvania. (ECF No. 14-1, Ex. A, Petition for Writ of Habeas Corpus); Rambert v. Shannon, No. 3:CV-11-1370, ECF No. 1 (M.D. Pa. June 3, 2011). In his Memorandum, Judge William J. Nealson addressed Petitioner's claim as follows:

Under Pennsylvania law, the aggregation of consecutive sentences is automatic and mandatory. Anderson v. Board of Probation and Parole, No. 03-4655, 2004 WL 286870, *1 (E.D. Pa. Feb. 12, 2004); Commonwealth ex rel. Smith v. Department of Corrections, 829 A.2d 788 (Pa. Cmwlth. 2003); Gille ...

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