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Shay v. Gilmore

United States District Court, W.D. Pennsylvania

November 14, 2019

KEVIN R. SHAY, Petitioner,
v.
WARDEN GILMORE; THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY; and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          ORDER RE: ECF NOS. 22, 26, 31 AND 32

          MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE

         Kevin R. Shay ("Petitioner"), in the above-captioned matter has submitted for filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition") and was granted leave to proceed in forma pauperis. ECF No. 3. Petitioner has recently filed four motions, which, for the reasons stated below, will be denied in light of the fact that Petitioner has not demonstrated that he exhausted his state court remedies with respect to the claims raised in the three Motions, all of which claims arose after the filing of the Petition.

         I. PROCEDURAL HISTORY

         The Petition was formally filed on March 1, 2019. ECF No. 4. Petitioner raised one Ground for Relief, challenging the crediting of his sentences in two cases, namely, Commonwealth v. Shay, CP-02-CR-00P0290-2006 (Court of Common Pleas Allegheny County) and Commonwealth v. Shay, CP-02-CR-0000918-2007 (Court of Common Pleas Allegheny County), both of which are now assigned to the Honorable Jill Rangos. ECF No. 4 at 1 (listing the dockets of the case numbers being challenged). Petitioner alleged that when the trial court resentenced him, the trial court failed to give him credit against these sentences for a period of time that he was incarcerated under these convictions. Specifically, Petitioner sought credit for the time period from October 29, 2013 to December 11, 2015. Id. at 5; ECF No. 4-3 at 3. Respondents filed an Answer, ECF No. 13, wherein the sole defense raised was an assertion that the question of whether Petitioner has been improperly denied credit against his sentences implicates only a state law claim that is not cognizable by means of a federal habeas corpus petition. The Court ordered Respondents to file a Supplemental Answer, no later than July 17, 2019, addressing specific questions raised by the Court. ECF No. 14. Respondents filed their Supplemental Answer on July 17, 2019, in compliance with the Court's Order. ECF No. 16.

         Respondents conceded in their Supplemental Answer that Petitioner may be correct in his contention that his sentences are not being correctly credited. However, Respondents further pointed out that Petitioner procedurally defaulted his claim in state court which would preclude this Court from providing federal habeas relief. However, Respondents further pointed out that Petitioner may have state court relief available to him. Indeed, Respondents went so far as to assert that "Respondents submit that although the instant habeas petition is barred from habeas relief, there may be a simple way to correct this matter in state court. Undersigned counsel shall bring this matter to the trial/sentencing court's attention promptly." ECF No. 16 at 10.

         The Court ordered Petitioner to file a response to the Supplemental Answer. ECF No. 17. Petitioner filed a Response to Supplemental Answer and asked this Court to order the Court of Common Pleas to resentence him. Petitioner failed to address the issue of procedural default. ECF No. 20.

         However, in light of the Respondents' representation regarding the potential availability of a state court remedy and that they would bring this issue to the state sentencing court's attention, on August 5, 2019, this Court ordered Respondents to file a status report with this Court, no later than September 5, 2019, concerning when the Allegheny County District Attorney's Office made their filing in state court, seeking to bring to the sentencing court's attention the apparent error in crediting of Petitioner's sentence and further ordered Respondents thereafter to file a monthly status report as to what progress such proceedings are making in state court. ECFNo. 21.

         On August 14, 2019, Petitioner filed a "Motion for Additional Time Credit and Correction of Sentence" ("Motion for Additional Time Credit") in this action. ECF No. 22. In that Motion for Additional Time Credit, Petitioner sought credit for the period of time from August 24, 2012 to October 29, 2013 against his sentences imposed at Commonwealth v. Shay, CP-02-CR-0000290-2006 (Allegheny County) and Commonwealth v. Shay, CP-02-CR-0000918-2007 (Allegheny County).

         On August 21, 2019, Respondents filed their first Status Report, ECF No. 23, wherein they indicated to this Court that they had alerted Judge Rangos to the issue of Petitioner deserving credit for the time period from October 29, 2013 to December 11, 2015 against his sentences at Commonwealth v. Shay, CP-02-CR-0000290-2006 (Allegheny County) and Commonwealth v. Shay, CP-02-CR-0000918-2007 (Allegheny County). Respondents further indicated that Judge Rangos issued an order on August 16, 2019 ("Judge Rangos' August 16, 2019 Order"), granting Petitioner that credit against his two sentences for the identified time period.

         On September 4, 2019, Petitioner filed a Response to the Status Report, ECF No. 24, wherein he concedes that he received the October 29, 2013 - December 11, 2015 credit against the two sentences. In the Response, Petitioner again sought additional credit for the time period from August 25, 2012 to October 29, 2013 against those same two sentences. ECF No. 24.[1]

         On October 4, 2019, this Court ordered Respondents to file a response to Petitioner's Motion for Additional Time Credit. ECF No. 25.

         On October 22, 2019, Petitioner filed yet another Motion, which he called a "Motion to Compel," ECF No. 26, wherein he complained that in Judge Rangos' August 16, 2019 Order, she committed a clerical error in that although she explicitly gave him credit for the time sought from October 29, 2013 to December 11, 2015, she erred in not including in that Order all of the other periods of time that she had previously ordered him to receive credit for against his two sentences at Commonwealth v. Shay, CP-02-CR-0000290-2006 (Allegheny County) and Commonwealth v. Shay, CP-02-CR-0000918-2007 (Allegheny County). Petitioner appears to assert that this "missing" time credit was from December 3, 2010 to August 3, 2011, which this Court calculates to amount to a period of 243 days. ECF No. 26 at 4. In support of his contention that Judge Rangos erred in her August 16, 2019 Order, Petitioner attached a Grievance Response from the Pennsylvania Department of Corrections ("DOC"), indicating that the DOC would not give Petitioner credit against the sentence imposed at Commonwealth v. Shay, CP-02-CR-0000290-2006 (Allegheny County) for a period of 179 days, [2] ECF No. 26-2, because Judge Rangos' August 16, 2019 Order "does not state that you should also be entitled to the additional 179 days that you are requesting." Id.

         On October 28, 2019, the Court ordered Respondents to file a Response to Petitioner's Motion to Compel. ECF No. 29. In the Order, the Court directed that Respondents could file one Response to both Petitioner's Motion for Additional Time Credit and his Motion to Compel.

         On October 29, 2019, Respondents filed their Response. ECF No. 30. In their Response, they replied to Petitioner's Motion for Additional Credit, and indicated that Petitioner received credit for that time period from August 24, 2012 to September 19, 2012 against his sentence imposed for yet a third case, namely, Commonwealth v. Shay, CP-02-CR-0012705-2011 (Allegheny County), a case tried in front of the Honorable Thomas Flaherty. Respondents pointed out that under relevant state law, Petitioner was not entitled to credit against the other two sentences (at Commonwealth v. Shay, CP-02-CR-0000290-2006 (Allegheny County) and Commonwealth v. Shay, CP-02-CR-0000918-2007 (Allegheny County)) as well, for this period of time as it would result in double crediting. However, Respondents conceded that Petitioner was held from September 20, 2012 to October 29, 2013 due to his probation violations at either Commonwealth v. Shay, CP-02-CR-0000290-2006 (Allegheny County) or Commonwealth v. Shay. CP-02-CR-0000918-2007 (Allegheny County). ECF No. 30 at 2 ΒΆ 7. Respondents specifically concede that "Petitioner would be entitled to time credit from ...


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