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Bell v. PA Bd. of Probation and Parole

United States District Court, M.D. Pennsylvania

November 4, 2019

DARRYL ARTHUR BELL, Petitioner
v.
PA BD. OF PROBATION AND PAROLE, et al., Respondents

          MEMORANDUM

          MALACHY E. MANNION, United States District Judge.

         Darryl Arthur Bell, an inmate formerly confined in the Pennsylvania Department of Corrections, [1] filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). Bell challenges his classification as a Tier III sex offender under Pennsylvania's Sex Offender Registration and Notification Act (“SORNA”). 42 Pa.C.S. §§9799.10, et seq.

         By Memorandum and Order dated June 14, 2017, the Court denied Bell's petition for writ of habeas corpus, finding that Bell's 1990 Rape conviction and sentence, is listed under SORNA as one of the Tier III sexual offenses that require him to register as a sex offender for a lifetime and appear in person quarterly at an approved registration site to verify the information provided to the PSP and to be photographed. (Docs. 13, 14).

         On June 29, 2017, Bell filed a notice of appeal. (Doc. 16). By Order dated June 5, 2018, the United States Court of Appeals for the Third Circuit vacated the District Court's Order, stating the following:

Darryl Bell appeals an order of the District Court denying his petition for a writ of habeas corpus under 28 U.S.C. §2254. Before the District Court, Bell sought relief based on a constitutional challenge to the retroactive application of Pennsylvania's Sex Offender Registration and Notification Act (SORNA). The District Court denied the petition, applying deference under 28 U.S.C. §2254(d) to a decision from the Pennsylvania Commonwealth Court. After Bell filed his notice of appeal, the Pennsylvania Supreme Court held that Pennsylvania's SORNA violated the federal Ex Post Facto Clause. Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017). We granted a certificate of appealability and asked the parties to show cause why the District Court's decision should not be summarily vacated and the case remanded to the District Court in light of Muniz. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. After receiving the show-cause responses from the parties, we conclude that these arguments are best considered for the first time before the District Court. Thus, we vacate the District Court's order and remand to the District Court in light of Muniz and any additional arguments the parties wish to raise. We express no opinion on the procedural or substantive issues raised by Bell's effort to obtain habeas relief.

(Doc. 21).

         By Order dated November 5, 2018, the District Court ordered supplemental briefing from the parties, on the impact, if any, Muniz has on Petitioner's claim for relief. The petition is now ripe for disposition. For the reasons that follow, the petition will be dismissed for Petitioner's failure to exhaust state court remedies with respect to the newly enacted SORNA II.

         I. Background

         In 1960, Petitioner, Darryl Arthur Bell, committed the crime of murder after he shot and killed Philadelphia grocery store owner Herman Rosenberg. (Doc. 7-1 at 16, Bell's December 24, 2013 deposition testimony; Doc. 7-1 at 48, 52, Philadelphia Police Department Offense Report dated December 22, 1960). Bell was subsequently sentenced to death for this crime. (Doc. 7-1 at 17). Bell was also implicated in the murder of Philadelphia grocer Max Kanal, and subsequently sentenced to death in the electric chair for this crime. Id. Bell's death sentence was overturned and converted to a life sentence after the U.S. Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972).

         In December of 1975, the Pennsylvania Board of Pardons recommended that Bell's Life sentence be commuted to a term of imprisonment of 16 years to Life. (Doc. 7-1 at 57, Board of Pardons Recommendation).

         On June 15, 1976, Governor Milton Shapp commuted Bell's sentence from Life to sixteen (16) years to Life, and eligibility for parole and pre-release consideration. (Doc. 7-1 at 59, Governor's commutation Order).

         On February 24, 1978, the Board released Bell on parole to an approved home plan. (Doc. 7-2 at 2, Order to Release on Parole).

         In or around 1986, Bell was charged with Rape of his 17-year-old stepdaughter. (Doc. 7-2 at 5, Pennsylvania Department of Corrections Public Safety Face Sheet dated January 27, 1999). Bell was subsequently convicted of the crime of Rape and, on August 7, 1990, was sentenced to a term of imprisonment of eight (8) to twenty (20) years of incarceration. (Doc. 7-2 at 7, Pennsylvania Department of Corrections Sentence Status Summary Sheet). Bell's minimum sentence date on this new sentence was calculated as May 30, 2001 and his maximum sentence date was calculated as May 30, 2013. Id.

         By a decision mailed February 14, 1991, the Board recommitted Bell as a convicted parole violator for committing the new crime of rape while on parole and ordered him to serve forty-eight (48) months backtime. (Doc. 7-2 at 11, Board's recommitment decision). The decision mailed February 14, 1991, also provided that Bell would be reparoled on or after December 19, 1994 to his eight (8) to twenty (20) year detainer sentence. Id. Consequently, on December 19, 1994, Bell was constructively reparoled from his Life sentence for Murder in the First Degree to his eight (8) to twenty (20) year Rape sentence, which had a minimum date of May 30, 2001 and a maximum date of May 30, 2013. (Doc. 7-2 at 13, Order to Release on Parole/Reparole).

         On March 6, 2013, the Board requested that the State of North Carolina supervise Bell once he maxed out on his Rape conviction, as Bell's sister agreed to allow him to live with her in Wilmington, North Carolina. ...


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