O'Brien v. Pa. Bd. of Prob. & Parole

• Decision Date: 04 August 2014
• Docket Number: CIVIL ACTION NO. 3:13-CV-2085
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: MICHAEL GEORGE O'BRIEN, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al., Respondents.

MICHAEL GEORGE O'BRIEN, Petitioner,
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al., Respondents.

CIVIL ACTION NO. 3:13-CV-2085

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 4, 2014

(JUDGE CONABOY)
(Magistrate Judge Mehalchick)

MEMORANDUM

Here we consider Magistrate Judge Karoline Mehalchick's Report and Recommendation (Doc. 19) concerning Petitioner Michael George O'Brien's 28 U.S.C. § 2254 petition for habeas corpus in which he claims that the Pennsylvania Board of Probation and Parole incorrectly calculated his maximum date and was without authority to extend his term beyond the October 19, 2007, date originally established (Doc. 1). Magistrate Judge Mehalchick recommends dismissal of the action based on Petitioner's failure to exhaust his state court remedies. (Doc. 19 at 10-11.) After having requested and been granted an extension of time to file objections to the Report and Recommendation (Docs. 20, 21), Petitioner filed his objections on June 19, 2014 (Doc. 22). Respondents did not file a response to the objections. The Court requested Respondents to file a supplemental brief by Order of July 17, 2014. (Doc. 23.) Respondents filed their supplemental brief on July 31, 2014. (Doc. 24.) Therefore, this matter is ripe for disposition.

Page 2

For the reasons discussed below, we adopt the Report and Recommendation as modified. We conclude this 28 U.S.C. § 2254 petition (Doc. 1) is properly denied.

I. Background

Respondents set out an extensive background in their Response to Petition for Writ of Habeas Corpus (Doc. 14 at 1-14) and Memorandum in Opposition to Petition for Writ of Habeas Corpus (Doc. 15 at 1-13) and provided extensive supporting documentation (Docs. 14-1, 14-2). We will not repeat that information here but will summarize portions of Respondents' recitation pertinent to our discussion.

Petitioner is currently serving a five-to-twenty-year sentence for Aggravated Assault based on his 1987 conviction in the Court of Common Pleas of Luzerne County, Pennsylvania. (Doc. 15 ¶ 1.) The original minimum and maximum dates for the sentence were set at October 19, 1992, and October 19, 2007. (Id. ¶ 2.) Petitioner was first paroled on October 19, 1992. (Id. ¶ 3.) Since that initial parole, Petitioner repeatedly violated conditions of his parole, committed new offenses, was recommitted as a technical and/or convicted parole violator, and ordered to serve backtime¹. (Doc. 15 ¶¶ 4-48.)

Page 3

Petitioner was last released on parole on August 6, 2007, with a controlling maximum date of March 19, 2013. (Doc. 15 ¶ 38.) Thus, at the time of his release on August 6, 2007, Petitioner had 2052 days remaining on his sentence. (Doc. 15 at 19 & n.2.)

Previously Petitioner had received credit for 445 days of time spent at liberty on parole--from April 30, 2001, to September 19, 2001, and from November 17, 2003, to September 15, 2004. (Doc. 15 ¶¶ 25-32.) This time had not been forfeited as of his August 6, 2007, release. (Doc. 24 at 8.)

On January 20, 2009, the Board declared Petitioner delinquent effective January 12, 2009. (Doc. 15 ¶ 39.) On January 21, 2009, he was arrested and detained for violating the change of residence and reporting conditions of his parole. (Id. ¶ 40.)

On or about February 3, 2009, Petitioner was arrested by the Wilkes-Barre police department for multiple counts of Arson, Criminal Mischief and related offenses which occurred on December 19, 2008. (Doc. 15 ¶ 45.)

By decision dated March 3, 2009, and recorded on February 25, 2009, the Board recommitted Petitioner to a state correctional institution as a technical parole violator to serve twelve months backtime. (Doc. 15 ¶ 42.)

By decision recorded on January 28, 2010, the Board deleted the parole violation maximum date, indicating it would be added when available pending resolution of Petitioner's new criminal

Page 4

charges. (Doc. ¶ 44.)

On April 16, 2012, Petitioner pled guilty to Conspiracy to Reckless Burning or Exploding (F3) and Conspiracy to Commit Criminal Mischief/Damage to Property Intentional, Reckless or Negligent (F3) and was sentenced to a term of imprisonment of 11 months, 29 days to 2 years. (Doc. 15 ¶ 46.)

In a decision recorded on June 14, 2012, the Board recommitted Petitioner to a state correctional institution as a convicted parole violator to serve 18 months backtime and recalculated his parole violation maximum date to August 28, 2018. (Doc. 15 ¶¶ 48-49.) On July 13, 2012, and July 24, 2012, the Board received administrative appeals filed by Petitioner challenging the recalculation of the maximum date. (Id. ¶ 50.)

In a decision recorded on August 6, 2012, and mailed on August 7, 2012, the Board modified its action of June 14, 2012, by changing the parole violation maximum date to November 21, 2017, and advising Petitioner that he could file a request for administrative relief with the Board within thirty days if he wished to appeal the decision. (Doc. 15 ¶¶ 51, 55.)

On September 7, 2012, the Board mailed a response to Petitioner regarding his administrative appeals received on July 13, 2012, and July 24, 2012, indicating that his challenge to the recalculation decision was moot based on the Board's August 6, 2012, recalculation decision. (Doc. 15 ¶ 52.)

Page 5

On December 13, 2012, Petitioner was refused parole and his parole violation maximum date remained November 21, 2017. (Doc. 15 ¶ 64.)

On January 22, 2013, the Board received another administrative appeal from Petitioner regarding the November 21, 2017, maximum date. (Doc. 15 ¶ 53.)

On January 23, 2013, Petitioner filed a Petition for Administrative Review in the Commonwealth Court's appellate jurisdiction. (Doc. 15 ¶ 60.)

On February 12, 2013, the Commonwealth Court issued an Order stating that the petition for review was quashed as untimely to the extent Petitioner was appealing the Board's decision mailed on September 7, 2012 (finding his July 13, 2012, and July 24, 2012, appeals moot based on the Board's recalculation of his max date from August 28, 2018, to November 21, 2017). (Doc. 15 ¶ 61; Doc. 14-2 at 108.) The Order also stated that to the extent Petitioner was challenging the recalculation of his parole violation maximum date as announced in the decision mailed on August 12, 2012, the appeal was dismissed as premature without prejudice to Petitioner filing a timely appeal once the Board issued a decision on his request for administrative relief. (Doc. 14-2 at 108.)

On April 16, 2013, the Board received another administrative request for relief from Petitioner challenging the November 21, 2017, maximum date. (Doc. 15 ¶ 56.)

Page 6

On April 17, 2013, the Board mailed a response to Petitioner concerning the administrative appeal it had received from him on January 22, 2013. (Doc. 15 ¶ 54; Doc. 14-2 at 91.) The response stated that because Petitioner objected to the November 17, 2017, maximum sentence date calculation, his request was considered to be a petition for administrative review from the decision mailed on August 7, 2012. (Doc. 14-2 at 91.) Because it was not mailed within thirty days of the mailing date of the August 7, 2012, decision, it was untimely, and because Petitioner did not allege sufficient grounds for it to be considered nunc pro tunc, the request for review was dismissed as untimely. (Id.)

On May 29, 2013, and June 25, 2013, the Board received administrative requests for relief from Petitioner again challenging the November 21, 2017, maximum date. (Doc. 15 ¶¶ 56, 58.)

On July 31, 2013, the Board denied Petitioner's April 17, 2013, and May 29, 2013, requests as second or successive and untimely. (Id. ¶ 57.)

On July 1, 2013, Petitioner filed a Petition for Writ of Habeas Corpus in Commonwealth Court's original jurisdiction. (Doc. 15 at 13.) On July 8, 2013, Commonwealth Court dismissed the petition for review for lack of original jurisdiction. (Id.)

On August 20, 2013, the Board denied Petitioner's June 25, 2013, request for administrative relief as second or successive.

Page 7

(Doc. 15 ¶ 59; Doc. 14-2 at 101.) The Board also informed Petitioner that any additional requests for relief from the August 6, 2012, Board decision would not be accepted and he would receive no response from the Board. (Doc. 14-2 at 101.)

As noted above, Magistrate Judge Mehalchick recommends dismissing this matter based on Petitioner's failure to exhaust his state remedies. (Doc. 19.) Petitioner timely filed objections to the Report and Recommendation, asserting that his failure to exhaust should be excused, the Magistrate Judge should have addressed the merits of his claims, and his petition should be granted. (Doc. 22.)

II. Discussion

A. Standard of Review

When a magistrate judge makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. See Thomas v. Arn, 474 U.S. 140, 150-53 (1985). When no objections are filed, the district court is required only to review the record for "clear error" prior to accepting a magistrate judge's recommendation. See Cruz v. Chater, 990...