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Darby v. Delbalso

United States District Court, E.D. Pennsylvania

October 25, 2019

HARRY DARBY, Petitioner,


          JOSEPH F. LEESON, JR., United States District Judge.

         Report and Recommendation, ECF No. 9-Adopted


         In this habeas action, petitioner Harry Darby challenges the Pennsylvania Parole Board's 2012 recalculation of the length of his prison sentence resulting from several 1984 state court criminal convictions. The sentence (or, more accurately, the recalculation thereof) that Darby challenges was imposed following his conviction on several additional criminal offenses while out on parole in 2009. The underlying chronology of relevant events is not overly complex. On August 17, 2006, Darby was paroled from a Pennsylvania prison after having served approximately twenty-two years of a sentence resulting from his 1984 conviction of rape and robbery. He was paroled about six and a half years prior to the latest potential release date carried by his sentence-January 18, 2013. In 2009, while out on parole, Darby committed several other offenses, to which he pleaded guilty on August 16, 2011. Darby received a sentence of seven to fourteen years for the 2009 offenses; however, based on these new offenses, in 2012 the Pennsylvania Parole Board recalculated the maximum expiration date of Darby's original sentence-that is, his sentence for the 1984 convictions-as August 19, 2016.

         On December 4, 2016, Darby filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge the Parole Board's recalculation of the expiration date of his original sentence. After briefing, United States Magistrate Judge Elizabeth T. Hey issued a Report and Recommendation (“R&R”) recommending that Darby's habeas petition be dismissed based on the Court's lack of jurisdiction to entertain the petition. Darby has filed objections to the R&R. After de novo review, this Court adopts the R&R and dismisses Darby's petition.


         A. Darby's petition and the Parole Board's response

         Darby's December 4, 2016, habeas petition lists a single basis for relief. As “GROUND ONE” of his petition, Darby states that “[t]he PA., Parole Board increased Petitioner's Judicially imposed sentence.” Hab. Pet. ¶ 12, ECF No. 1. In support of this grievance he states as follows:

The Philadelphia Co., Court of Common Pleas, issued the Petitioner a sentencing Order: Ordering Him to Serve 15 to 30 years, on September 5, 1984, with a max date of March 18, 2013.[1] That was changed by an administrative agency, PA., Parole Board to end on august 18, 2016.

Id. At the end of the petition, with regard to the relief he seeks, Darby asks “[t]hat all time served over his original judicially imposed max date [of] March 18, 2013, b[e] credited to his new sentence now being served.” Id. at 18.

         Darby also filed an “Application for Amendment of Pleadings, ” setting forth argument in support of his petition. In this document, Darby contends that the Board's recalculation[2] of his maximum sentence on his original conviction, which resulted from his 2011 guilty plea to the additional criminal offenses, was “unlawful” because it was “without a valid Court order.” Am. Pet. ¶ 6, ECF No. 5-1. He similarly contends that “the Board is attempting to assume judicial authority / power over an individuals [sic] legally imposed sentence which is contrar[y] to the United States and Pennsylvania Constitution[s], and laws, where only a sentencing Court possess authority / power to alter a judicially imposed sentence.” Id. ¶ 8 (emphasis in original). Additionally, he argues that “61 Pa. CS § 6138(a)(2), is in opposition to Pennsylvania Constitution Art 5, § 1, and 42 Pa. CS § 9764(a)(8), 61 Pa. CS § 6138(a)(5), making these statutes constitutionally infirm and in conflict with each other and with clearly established Pennsylvania and United States law.” Id.

         The Parole Board's response to the petition begins by recounting the procedural history of Darby's criminal convictions and sentencing, including the method used by the Board to recalculate his initial sentence in 2012.[3] See Board's Opp'n. at 1-6, ECF No. 8. The Board then advances four distinct arguments in opposition to Darby's petition: (1) in waiting over two years to seek administrative review of the sentence recalculation-he did not petition for administrative review until October 23, 2014-Darby has failed to timely exhaust his administrative remedies, and he has procedurally defaulted on those remedies as a result; (2) Darby's habeas petition was filed well after the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1), and the petition is therefore untimely; (3) the Court lacks jurisdiction to entertain the petition because it was filed after the sentence that he purports to challenge had expired; and (4) even were the Court to assess the merits of his petition, there is no basis to question the validity or legality of the Board's recalculation. See generally id.

         B. The Report and Recommendation

         In her R&R, Magistrate Judge Hey recounts the relevant procedural history of Darby's case, before observing that “both Darby and the Parole Board agree that his original sentence, as recalculated, by the Parole Board after his recommitment, expired on August 18, 2016.” R&R at 5. Judge Hey further observes that Darby “did not file this habeas petition until December 4, 2016. More than three months after he completed serving the original sentence.” Id. “Therefore, ” she concludes, “he was not in custody on the sentence he attacks when he filed his habeas petition and this court lacks jurisdiction to consider his petition.” Id. This is the basis for Judge Hey's dismissal of Darby's petition; in finding an absence of jurisdiction to review the petition, Judge Hey declined to address the Parole Board's other arguments in opposition. See id. at 6.

         C. Darby's objections

         Darby filed timely objections to the R&R. Although Darby purports to challenge Judge Hey's conclusion that at the time of the filing of his habeas petition he was no longer in custody on the sentence he attacks, [4] his objections are largely restatements of the arguments asserted in his petition and accompanying documents. The first of two numbered paragraphs in his “objections” states as follows:

Petitioner avers that he remains incarcerated as a continuing injury of UNCONSTITUTIONAL statu[t]e, 42 PA.C.S.A. § 9718(a)(3), MANDATORY SENTENCE, 10 to 20 years for rape. That has been made unconstitutional, invalid by a State Tribunal. That Parole Board never had jurisdiction to recalculate the maximum date of any sentence.

         Objs. at 1, ECF No. 11. The second numbered paragraph contends that, as a result of “an illegal statute, ” namely, 42 Pa. Cons. Stat. § 9718(a)(3), which governs mandatory minimum sentences, including for rape, of which he was convicted in 1984, he “had no other recourse but to enter in to unlawful negotiated guilty plea; Possession of Firearm - Prohibited, which implicates the mandatory minimum sentence, 42 PA.C.S.A. § 9718(a) and (b), 5 to 10 years on November[ ]14, 2011.” Id. at 2.


         When timely objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). Where objections are general rather than specific, de novo review is not required. Snyder v. Bender, 548 Fed.Appx. 767, 771 (3d Cir. 2013); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Uncontested portions of a report and recommendation, as well portions to which untimely or general objections are made, may be reviewed at a standard determined by the district court; however, at the very least, these portions should be reviewed for “clear error or manifest injustice.” Colon-Montanez v. Delbalso, No. 3:15-CV-02442, 2016 WL 3654504, at *1 (M.D. Pa. July 8, 2016); Equal Employment Opportunity Comm'n v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (“[A] district court should ‘afford some level of review to dispositive legal issues raised by the report[.]' We have described this level of review as ‘reasoned consideration.'” (quoting Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987))). A district court “may accept, reject, or modify, in ...

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