Hargrove v. PA Board of Probation and Parole, Civil Action No. 99-1910 (E.D. Pa. 10/12/1999), Civil Action No. 99-1910.
| Decision Date | 12 October 1999 |
| Docket Number | Civil Action No. 99-1910. |
| Parties | ANTHONY HARGROVE, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, ET AL. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Petitioner, Anthony Hargrove, a state prisoner incarcerated at the State Correction Institute in Frackville, Pennsylvania, filed a pro se Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1)(B) (West 1993) and Local Rule of Civil Procedure 72.1, this Court referred the Petition to United States Magistrate Judge Jacob P. Hart for a Report and Recommendation ("Report"). Magistrate Judge Hart recommends that the Court dismiss the Petition; Petitioner filed timely objections. For the following reasons, I will overrule Petitioner's objections, adopt the Magistrate Judge's Report, and deny the Petition.
On June 15, 1988, the Court of Common Pleas for Philadelphia County, Pennsylvania, sentenced Anthony Hargrove to a term of two to fifteen years for the crime of robbery.
Since 1990, Hargrove has been paroled four times. Hargrove was first granted parole on March 30, 1990, which was revoked on March 6, 1991 for a technical parole violation. He was granted parole a second time three months later, on June 23, 1991, which was revoked for the same reason as his first revocation on January 23, 1992. Hargrove's third parole grant occurred on March 2, 1993, and due to a new conviction, it was revoked on July 9, 1993.
He was most recently paroled on January 12, 1998. On August 20, 1998, his parole was revoked for having tested positive for cocaine. The Board assessed him a ten-month backtime penalty during which he would not be eligible for parole. Following the expiration of his backtime, Hargrove was again reviewed for parole and denied in February, 1999. Hargrove remains in prison in Frackville, Pennsylvania, due to be reviewed again for parole in February, 2000.
Hargrove's present petition in this Court stems entirely from this last parole revocation, and the denial of reparole that occurred after it. Hargrove presents one ground upon which he believes habeas corpus should be granted, originating primarily from what he believes to be a denial of due process rights under the Fourteenth Amendment.1 The Court construes Hargrove's due process claim to hinge on a characterization of his most recent reparole denial as an excessive and unsubstantiated "backtime" penalty, discussed below.
By Order dated May 3, 1999, this Court referred the Petition to Magistrate Judge Jacob P. Hart for a Report and Recommendation. On June 16, 1999, Judge Hart filed his Report and recommended that Hargrove's Petition be denied. Hargrove filed Objections to the Report on July 1, 1999.
Hargrove filed his petition pursuant to 28 U.S.C. § 2254(a), which may be filed by "a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132, 110 Stat. 1214, made numerous changes to Title 28, Chapter 153 of the United States Code, 28 U.S.C. § 2241-2255, the chapter governing federal habeas petitions. Section 2254(d)(1), as amended by AEDPA, provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. . . .
28 U.S.C.A. § 2254(d)(1) (West 1999). A habeas writ should not be granted "unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo v. Superintendent S.C.I. Albion, 171 F.3d 877, 890 (3d Cir. 1999). Federal courts may also consider the decisions of inferior federal courts when evaluating whether the state court's application of the law was reasonable. Id.
Where a habeas petition has been referred to a magistrate judge for a Report and Recommendation, the district court 28 U.S.C.A. § 636(b) (West 1993).
Before moving to any analysis of Hargrove's exhaustion of state remedies or the merits of his claim, this Court must first determine whether or not Hargrove managed to state any sufficient ground for relief. Hargrove's primary argument is rather technical, but its essence is that the parole board violated his due process rights when it denied his request for reparole on February 9, 1999.
A review of the facts surrounding this most recent denial is critical. The Board's revocation of Hargrove's parole and his subsequent recommittal to prison stemmed from a single technical violation of his parole on August 20, 1998, when Hargrove tested positive for cocaine use. The Board held a revocation hearing and assessed a ten-month backtime penalty.2 (Pet. at 17.) A single technical violation carries a presumptive backtime range of 5 to 12 months. 37 Pa. Cons Stat. Ann § 75.4 (West 1999).
The Board stated in its decision that Hargrove would be eligible for a parole hearing after his backtime had expired, in February, 1999. (Pet. at 17.) When Hargrove's backtime had expired, the Board reviewed him for parole, as they would for any other prisoner who met certain eligibility requirements for parole review. Hargrove was denied parole in a decision dated February 9, 1999. (Pet. at 18.) The decision also stated that Hargrove would be reviewed again for parole after a year had passed: in February, 2000. Id.
It is this year between the parole review of February, 1999, and February, 2000, on which Hargrove bases his rather technical claim of due process violation. By characterizing the parole review of February, 1999, as a review of the initial ten month backtime he was assessed in his revocation hearing, Hargrove concludes that the statement that he would not be reviewed again until February of 2000 equaled an assessment of an additional twelve months of backtime. (Pet'r. Mem. at 1.) The difference is critical: assessments of backtime penalties in excess of the presumptive range require the Board to explain its reasons in great detail. 37 Pa. Cons Stat. Ann § 75.3 (West 1999).
Having characterized the time between the February, 1999, decision and his next parole review as an additional twelve months of backtime, Hargrove then asserts that the Board violated his rights by failing to explain its reasons for "deviating" from the presumptive range of backtime usually assessed. (Pet'r Mem. at 4.) In support of his conclusion, Hargrove cites to Duncan v. Pa. Board of Probation and Parole, 687 A.2d 1179 (Pa. Commw. Ct. 1996), where a prisoner was assessed a 48-month backtime penalty for a single technical violation of parole. Appealed directly from Duncan's revocation hearing, the court concluded that the Board had not sufficiently explained its reasons for assessing Duncan 48 months of backtime for a single technical parole violation. Duncan, 687 A.2d at 1180-81.
Importantly, Duncan concerns itself only with the backtime assessed at the revocation hearing. Id. Here, Hargrove does not challenge the backtime assessed after his revocation hearing in September, 1998. Rather, Hargrove attempts to characterize the time between the February, 1999, review and the February, 2000, review as a continuation of backtime penalty. (Pet'r. Mem. at 2.) Such a characterization is necessary in order to exceed the presumptive range, triggering the procedural safeguards discussed in Duncan concerning excessive backtime penalties. Id.
Hargrove points to no reason in his petition or supporting memorandum why the parole board's decision of February, 1999, was anything but what it said it was: a denial of parole. The decision was not a revocation hearing decision, and the Board made no mention of the assessment of any "additional" backtime. Rather, Hargrove, just like any other prisoner, was merely denied parole and given a period of time after which he may be reviewed again. The twelve months of time which will elapse before he is reviewed again have nothing to do with Hargrove's backtime penalty. Hargrove is merely experiencing the same repetitive procedure of intermittent parole review that has occurred before each time he has been paroled in the past.
Duncan, then, has no application here because Hargrove's only backtime penalty was within the presumptive range for single technical violations of parole, while Duncan only addresses the proper course of conduct when backtime penalties are assessed which are outside of that presumptive range. Penalties within the presumptive range for a given violation do not give rise to a basis for relief under Pennsylvania law. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423, 425 (Pa. Commw. Ct. 1996); Lotz v. Pennsylvania Board of Probation and Parole, 548 A.2d 1295, 1296 (Pa. Commw. Ct. 1988) (). In fact, challenges in Pennsylvania courts to backtime that is within the presumptive range are considered to be "wholly frivolous" by Pennsylvania...
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