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Davis v. SUPT. Thompson

United States District Court, W.D. Pennsylvania

June 20, 2018

THOMAS DAVIS, BZ-9982, Petitioner,
v.
SUPT. THOMPSON, et al., Respondents.

          REPORT AND RECOMMENDATION

          Robert C. Mitchell United States Magistrate Judge.

         I. Recommendation:

         It is respectfully recommended that the petition of Thomas Davis (ECF No. 4) for a writ of habeas corpus be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.

         II. Report:

         Thomas Davis an inmate at the State Correctional Institution at Mercer has submitted a petition for a writ of habeas corpus. We note that in our Memorandum of January 19, 2012 filed at 2:12-cv-61 we wrote:

The instant petition was received on January 17, 2012. However, this is not the first federal challenge that the petitioner has directed at these convictions. Davis filed several other habeas actions in this Court: CA 97-629 was denied and a certificate of appealability denied by the Court of Appeals; 00-cv-884 was transferred to the Court of Appeals as a successive petition and the later Court dismissed the proceedings; 08-cv-441 was dismissed and a certificate of appealability was denied by the Court of Appeals; 08-cv-1724 was dismissed and no appeal pursued. More interesting is that on October 21, 2009, Davis filed a § 2241 petition in the Court of Appeal (No. 09-4064); that Court transferred the matter to this Court; it was filed at 09-cv-1452 and dismissed as improperly filed as a § 2241 petition and as barred as a successive § 2254 petition. No appeal was pursued. Finally, on April 28, 2010 Davis filed another habeas corpus petition at ¶ 2:10-cv-538. That petition was transferred to the Court of Appeals as a successive petition and leave to file a successive petition was denied by the Court on August 9, 2010.

         The current petition which appears to be approximately his twelfth petition was received on June 28, 2017. In the latest filing Davis contends that on June 15, 1989 he was taken into custody and sentenced to a one to four year term of imprisonment[1] and was paroled on those charges on May 2, 1990. However, he was not released from custody but entered upon a fourteen to twenty-eight year sentence imposed on January 14, 1992. Petitioner now contends under Pennsylvania law he should have received credit on his second sentence for time served on his first sentence. That is, the second sentence should have included credit for the first sentence under Pennsylvania law and for this reason he is being held beyond his sentence maximum.

         The background to the petitioner's sentence is set forth in the November 30, 2017 Memorandum of the Commonwealth Court:

On December 25, 1988, Inmate was arrested on charges of criminal mischief and aggravated assault; he was released on bail in January 1989. While on bail, Inmate was arrested on February 25, 1989 on changes of two counts of robbery, for which he was not convicted, and arrested again on March 7, 1989 on six counts of robbery. He was convicted of criminal mischief and aggravated assault charges and subsequently, on four of the six counts of robbery.
On June 9, 1989, Allegheny County Court of Common Pleas Judge Joseph James sentenced Inmate to one-to-four years for his conviction on the charges of criminal mischief and aggravated assault; Inmate was given credit for the period from the date of his arrest, December 25, 1988, through the date of sentencing, with a maximum date of December 25, 1992. He was paroled from the one-to-four year sentence on May 2, 1990, but remained in custody on the pending robbery charges.
On January 14, 1992, Inmate was sentenced by Allegheny County Court of Common Pleas Judge W. Terrence O'Brien on four robbery counts to two 7-14 year sentences to be served consecutively and two 7-14 year sentences to be served concurrently; Inmate was given credit for the period from May 2, 1990, the date on which he was paroled from the sentence imposed by Judge James on the criminal mischief and aggravated assault conviction, through the sentencing date.
Inmate seeks re-calculation of his 1992 sentence, asserting that the effective date for that sentence should be the date on which he was first arrested on robbery charged, February 25, 1989. Inmate asserts that his maximum date should therefore be February 25, 2017 and not May 2, 2018, as indicated in the Department's Sentence Status Report reflecting the calculation of his total prison sentence. He argues that because he was incarcerated on pending robbery charges at the time he was sentenced on the unrelated criminal mischief and assault charges, under former Pa.R.Crim.P.1406(a), [which presumed that certain sentences run concurrently unless that judge states otherwise]. Inmate's argument is without merit [under Pennsylvania law] (footnote incorporated in text).[2]

At 2:08-cv-441 this Court concluded that as held in Benchoff v. Colleran, 404 F.3d 812 (3d Cir. 2005), when an inmate in a second habeas petition seeks to raise a claim that his sentence was improperly calculated and that issue could have been raised in the first petition it should be treated as a successive petition which cannot be reviewed without leave of the Court of Appeals and was subject to dismissal as such. Accordingly, the petition was dismissed and a certificate of appealability ...


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