Garrett v. Pa. Bd. of Prob. & Parole
| Decision Date | 14 May 2014 |
| Docket Number | CIVIL NO. 1:CV-13-0684 |
| Parties | CALVIN GARRETT, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al. Respondents |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Caldwell)
Calvin Garrett, an inmate at the State Correctional Institution in Houtzdale, Pennsylvania, has filed a pro se petition under 28 U.S.C. § 2254 challenging the decision of the Pennsylvania Board of Probation and Parole concerning the length of time to be served on a robbery offense after he was found to have violated parole. He makes the following claims. First, the Board violated due process when it failed to give him credit for time he spent in community corrections centers and inpatient programs. Second, the Board violated due process by adding two years to his maximum sentence on the robbery offense for a sentence on forgery charges. On this claim, Petitioner contends the forgery sentence was imposed to run concurrently, but the Board's action made the sentences run consecutively. He also argues that he was not given credit for the time he spent in custody solely on the Board's detainer and that his new maximum sentence date of February 5, 2018, illegally required him to serve in excess of the remaining balance ofhis maximum sentence. Third, Petitioner's procedural due process rights were violated when the Board changed Petitioner's original maximum sentence of March 21, 2013, to February 5, 2018 (later modified to September 11, 2017). Fourth, Petitioner received ineffective assistance of counsel from the attorney appointed to represent him at the hearing held to determine if Petitioner was to receive credit on his robbery sentence for the time he spent in community corrections centers and inpatient programs.
The parties' submissions provide the following relevant background. On December 27, 1995, Petitioner was sentenced in Philadelphia's court of common pleas to seven to twenty years for robbery. His minimum sentence date was March 21, 2000, and his maximum sentence date was March 21, 2013. (Doc. 19-2, ECF p. 2). Thereafter, on several occasions Petitioner was paroled, re-incarcerated for parole violations, and then reparoled.
On March 8, 2010, the Board reparoled Petitioner to a community corrections center. (Doc. 19-1, Board secretary's Decl. ¶ 22, and Doc. 19-2, ECF p. 27). At that time, Petitioner's maximum sentence date was October 20, 2015, based upon the number of times he had been re-incarcerated for parole violations. (Id.).
On August 3, 2011, Petitioner pled guilty to one count of forgery in the Court of Common Pleas of Luzerne County, Pennsylvania. On the same day, he was sentenced to one to two years' imprisonment. (Commonwealth v. Garrett, No. CP-40-CR-727-2011, docket sheet, pp. 2 and 3). The sentence was imposed to run concurrently with any sentence Petitioner was "now serving." (Doc. 24-1, ECF p. 2).
By a decision recorded October 5, 2011, and mailed October 27, 2011, the Board recommitted Petitioner as a technical parole violator for leaving the district without permission and for two counts of drug use. He was also recommitted as a convicted parole violator based on the forgery conviction. Petitioner was ordered to serve twelve months on the technical violations and twelve months on the conviction, to run concurrently, for a total of twelve months backtime. His parole violation "max date" (or maximum sentence date) was also extended to February 5, 2018. (Doc. 19-2, ECF pp. 30-31).
On November 5, 2011, Petitioner filed a petition for administrative review contending he was entitled to credit on his sentence for time he spent in halfway houses, beginning in 2000. (Doc. 19-2, ECF p. 33). In response, (Doc. 19-2, ECF p. 36), the Board stated it would not address his claim for time spent in halfway houses in 2000 or 2003, as Petitioner had made the same claim in a petition for review in July 2009, which the Board had dismissed as an untimely challenge to its September 2003 decision. (Doc. 36-1, ECF pp. 2 and 4). Petitioner's current challenge was therefore viewed as a second or subsequent request that was barred by Pa. Code § 73.1(b)(3). (Doc. 19-2, ECF p. 36). On December 20, 2011, the Board did hold a hearing to determine if time spent in three community corrections centers in 2006, 2007 and 2010 should be credited to hissentence under Cox v. Pennsylvania Board of Prob. & Parole, 507 Pa. 614, 493 A.2d 680 (1985).1 The Board appointed counsel to represent Petitioner at the hearing.
By a decision recorded January 11, 2012, and mailed January 19, 2012, the Board denied the request for credit for the time spent in the community corrections centers. Based on the hearing, it made findings of fact and conclusions of law in support of its decision. (Doc. 19-2, ECF pp. 44-46).
Petitioner filed a pro se administrative appeal, which was received by the Board on February 2, 2012. (Doc. 19-2, ECF p. 48). The Board also interpreted this appeal as a challenge to Petitioner's new maximum sentence date of February 5, 2018. In a decision mailed on March 19, 2012, the Board denied the appeal on both grounds. (Doc. 19-2, ECF pp. 50-51).2
On June 20, 2012, Petitioner filed a pro se petition for review in the Pennsylvania Commonwealth Court. (Doc. 19-1, ECF p. 10, docket sheet). This petition challenged the denial of credit and also asserted counsel was ineffective at the hearing and was otherwise ineffective. (Doc. 19-2, ECF pp. 56-57). On July 16, 2012, thecommonwealth court quashed the petition as untimely since the deadline for filing was April 18, 2012. (Doc. 19-1, ECF p. 12). On July 30, 2012, Petitioner filed a petition to file a petition for review nunc pro tunc. (Doc. 19-1, ECF p. 10). On August 6, 2012, the commonwealth court denied the petition, finding no basis for permitting an untimely filing and noting that Petitioner had "not exlain[ed] the delay in filing his petition for review." (Doc. 19-1, ECF p. 14). On October 24, 2012, Petitioner filed in the Pennsylvania Supreme Court a petition for leave to file a petition for allowance of appeal nunc pro tunc. (Garrett v. Pennsylvania Board of Prob. & Parole, No. 205 EM 2012). On February 11, 2013, the court denied the petition. (Doc. 21, ECF p. 32).
The respondent Board first argues that the petition should be dismissed because Petitioner procedurally defaulted on his state-court remedies by not timely pursuing them in state court.
A 2254 petition cannot be granted unless "the applicant has exhausted the remedies available in the courts of the State." 28 U .S.C. § 2254(b)(1)(A). Exhaustion is accomplished "by fairly presenting each claim at each stage of the state's established appellate review process." Villot v. Varner, 373 F.3d 327, 337 (3d Cir. 2004). After the Board's March 2012 denial of Garrett's petition for administrative review, he could have availed himself of judicial remedies, a petition for review in the commonwealth court, see Evans v. Pennsylvania Dep't of Corr., 713 A.2d 741, 742-43 (Pa. Commw. Ct. 1998), and then discretionary review in the state supreme court. McMahon v. Commonwealth,Pennsylvania Bd. of Prob. & Parole, 504 Pa. 240, 241-42, 470 A.2d 1337, 1337 (1983). Since state remedies are no longer available to Petitioner, he cannot exhaust those remedies, and he is now in procedural default. See Collins v. Secretary of Pennsylvania Dep't of Corr., 742 F.3d 528, 542 (3d Cir. 2014). A federal court cannot consider claims in a section 2254 petition that have been procedurally defaulted. Id. at *8.
In opposition, Petitioner contends that he did not procedurally default because he did in fact pursue appeals to the commonwealth court and the supreme court. Petitioner is mistaken. He is in procedural default because he failed to pursue those appeals within the time limit set by state law. See Hutchinson v. Pennsylvania Bd. of Prob. & Parole, 457 F. App'x 101, 103 (3d Cir. 2011)(nonprecedential)(untimely appeal to the state courts from a parole-revocation decision constituted a procedural default).
Petitioner next argues that any procedural default is excused because his hearing counsel was ineffective in not filing a timely petition for review in the commonwealth court when Petitioner asked him to do so. Ineffective assistance of counsel can excuse a procedural default. See Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008). However, the Sixth Amendment right to assistance of counsel does not apply in parole-revocation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973). Instead, a parolee has a due-process right to counsel on a case-by-case basis. Id. Accordingly, claims of ineffective parole-revocation counsel have not been recognized. See Alford v. Pennsylvania Bd. of Prob. & Parole, No. 12-CV-2616, 2013 WL 4080007, at *12 (M.D. Pa. Aug. 13, 2013);Hutchinson v. Pennsylvania Bd. of Prob. & Parole, No. 09-CV-2543, 2010 WL 3025122, at *2 (M.D. Pa. July 29, 2010); Burgess v. Holt, No. 06-CV-1954, 2007 WL 2212811, at *7 (M.D. Pa. July 31, 2007)(collecting cases).
However, we can ignore exhaustion and procedural-default issues if we are going to deny the petition on the merits. See Boettlin v. Smeals, 523 F. App'x 867, 869 n.3 (3d Cir. 2013)(nonprecedential)(citing 28 U.S.C. § 2254(b)(2) which authorizes a federal court to deny unexhausted claims on the merits). We have decided that Petitioner's claims are not meritorious, and so we will look past any exhaustion or procedural default issues.3
Petitioner's first claim is that he was entitled under Cox v. Pennsylvania Bd. of Prob. & Parole, 507 Pa. 614, 493 A.2d 680 (1985), and McMillian v. Pennsylvania Bd. of Prob. & Parole, 824 A.2d 350 (Pa. Commw. Ct. 2003), to credit on his sentence for time spent in community corrections centers. The difficulty with this claim is twofold. First, it is a state-law claim, and state-law claims cannot be...
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