The following background has been extracted from the Pennsylvania Superior Court's December 8, 2010 Opinion affirming Richardson's judgment of sentence.
On January 10, 2005, Appellant pled guilty to simple assault and false imprisonment, and the trial court sentenced him to six months to twenty-three months in prison for simple assault and twenty-four months probation for false imprisonment, the sentences to run consecutively.
On October 6, 2005, Appellant, who was now on parole, was charged with a parole violation and he was recommitted to the county prison. However, on December 12, 2005, since the criminal charges lodged against Appellant had been disposed of in central court by virtue of a summary offense plea, the probation officer no longer desired to pursue a Gagnon II hearing. Thus, Appellant was released from prison to his original conditions of parole supervision.
On July 12, 2006, Appellant was charged with a parole violation, and onSeptember 25, 2006, he was remanded on the original sentence of six months to twenty-three months with no credit for street time. The court indicated the "new effective date of sentence is October 25,2005 and it will expire on September 25, 2007." Moreover, the court indicated that Appellant's "probation on count 2 will remain in effect and will run consecutive to the parole violation sentence. The new maximum date is September 25, 2009. The defendant will be considered for furlough to the Salvation Army Treatment."
On October 20, 2006, the trial court indicated that Appellant was accepted into the residential treatment at the Salvation Army in Scranton, PA, and Appellant was released on furlough from the county prison to the Salvation Army on October 23, 2006. The trial court specifically indicated that "Offender is to abide by all conditions of the Lackawanna County Prison throughout the period of the furlough and shall return to the Lackawanna County Prison upon discharge from the Salvation Army. Failure to return will result in charges of Escape." On August 7, 2007, Appellant was placed on parole.
On September 2, 2008, Appellant was charged with violating a condition of his probation; however, the capias was rescinded on October 6, 2008. On January 22, 2009, Appellant was charged with violating a condition of his probation; however, the charges were withdrawn by the probation officer on January 30, 2009.
On October 8, 2009, Appellant was charged with violating three conditions of his probation, including failing to report to his probation officer, changing his residence without prior approval from his probation officer, and failing to complete anger management classes and the domestic violence program. On November 18, 2009, Appellant proceeded to a Gagnon II hearing, at which he stipulated to violating his probation in that he changed his residence without prior approval of his probation officer. Appellant's probation was revoked, and he was remanded to the county prison. Sentencing was deferred.
On February 8, 2010, Appellant filed a pro se writ of habeas corpus, alleging that he was being detained for a violation of a probationary sentence which had expired. On October 28, 2009, the trial court indicated it was forwarding the pro se writ of habeas corpus to Appellant's attorney.
On March 11, 2010, Appellant filed a counseled motion seeking to withdraw his admission to the probation violation. Specifically, Appellant alleged that his probation ended on September 25, 2009, and therefore, Appellant should not have been charged with a violation of his probation on October 8, 2009. On March 19, 2010, Appellant proceeded to a sentencing hearing, at which thetrial court denied Appellant's motion to withdraw his admission. During the hearing, Appellant admitted that he absconded from the Salvation Army and changed his address without notifying his probation officer approximately three months before his probation ended because he wanted to better his position financially. N.T. 3/19/10 at 10. The trial court, without the benefit of a pre-sentence investigation report, N.T. 3/19/10 at 8, then sentenced Appellant to one to two years in prison for false imprisonment and one to two years in prison for simple assault, the sentences to run consecutively. The trial court gave Appellant no credit for street time.
On March 29, 2010, Appellant filed a petition for reconsideration of his sentence in which the issues presented were (1) whether the trial court erred in failing to grant Appellant's counseled motion to withdraw his admission to the probation violation and (2) "[Appellant] is a product of particular circumstances and conditions of environment but that these matters were not fully and completely expressed in a pre-sentence report prepared by the Lackawanna County Probation Office." On March 30, 2010, the trial court denied Appellant's motion for reconsideration, and on April 7, 2010, Appellant filed a notice of appeal. The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) statement.
(Doc. 14-5, Ex. E, Memorandum Opinion of the Superior Court of Pennsylvania dated December 8, 2010).
On appeal, Richardson raised the following six issues:
1. Whether the lower court erred in revocating the Appellant's probation after his probationary sentence had expired.
2. Whether the lower court erred when it imposed sentence without ordering a presentence investigation or giving reason for not doing so on the record.
3. Whether there were sufficient grounds to revoke Appellant's probation in light of the fact that the proffered evidence was based upon hearsay testimony only.
4. Whether the sentence imposed by the lower court was excessive in light of all the factors presented.
5. Whether the lower court failed to articulate sufficient reasons for the sentence imposed.
6. Whether the lower court violated the Appellant's Due Process rights by failing to conduct the requisite violation hearing within a reasonable time.
(Doc. 14-4, Ex. D, Brief of Appellant).
By Memorandum Order filed December 8, 2010, the Pennsylvania Superior Court affirmed Petitioner's conviction and sentence. (Doc. 14-5, Ex. E, Memorandum Opinion of the Superior Court of Pennsylvania dated December 8, 2010). No appeal to the Pennsylvania Supreme Court was perfected.
On January 13, 2011, Richardson filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. §§ 9541-9546. See Commonwealth of Pa. v. Richardson, CP-35, CR-0002218-2004, Criminal Docket Sheet). On June 8, 2012, Richardson's PCRA petition was dismissed without a hearing. Id. No appeal was filed.
On March 3, 2011, Petitioner filed the instant petition for writ of habeas corpus in which he raises the following issues:
1. Whether the lower court erred in revoking Petitioner's probation after the probationary term had expired.
2. Whether the lower court erred when it imposed sentence without ordering a presentence investigation or giving reason for not doing so on the record.
(Doc. 9, Amended Petition).
In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued formal notice to Petitioner that he could either have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by thecourt of appeals, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Doc. 5). On March 28, 2011, Petitioner returned the notice of election, seeking leave of court to submit an amended petition. (Doc. 6). On April 7, 2011, Petitioner filed his amended petition. (Doc. 9). A Show Cause Order was issued on April 20, 2011, directing that the amended petition be responded to as filed. (Doc. 10).
On May 3, 2011, a response to the petition was filed. (Docs. 13, 14). On May 17, 2011, Petitioner filed a traverse. (Doc. 15). The petition is now ripe for disposition. For the reasons that follow, the petition for writ of habeas corpus will be denied.
II. Standards of Review Standards of Review A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-8 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
"A federal court may not grant a writ of habeas corpus unless (1) 'the applicant has exhausted the remedies available in the courts of the state', (2) no such state remedy is available or (3) available remedies are ineffective to protect the applicant's rights. 28 U.S.C. § 2254(b)(1)."Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998). "The exhaustion requirement is satisfied when the state courts have had an opportunity to pass upon and correct alleged constitutional violations." Evans v. Court of Common...
