United States District Court, W.D. Pennsylvania
ERIC X. RAMBERT, Petitioner,
MICHAEL OVERMYER, Warden, et al., Respondents.
S. Cercone District Judge
REPORT AND RECOMMENDATION
Pupo Lenihan United States Magistrate Judge
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
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.
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.
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.
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
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
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
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 ...