Madden v. Mooney et al
MEMORANDUM (Order to follow as separate docket entry) re: 1 Petition for Writ of Habeas Corpus filed by Mark A Madden. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 12/21/16. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK A. MADDEN,
VINCENT F. MOONEY, et al.,
CIVIL NO. 1:15-CV-627
(Chief Judge Conner)
Petitioner, Mark Madden (“Madden”), an inmate formerly confined at the
State Correctional Institution, Coal Township, Pennsylvania1, initiated this action
with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1). Therein, he contends that the Pennsylvania Board of Probation and
Parole (“PBPP”) violated his constitutional rights when the PBPP revoked his
parole and calculated his parole violation maximum date as September 10, 2022.
(Id.) For the reasons that follow, the petition will be denied.
Subsequent to the filing of the instant petition, Madden was released from
custody. Upon entering Madden’s offender identification number, GG4208, into the
Vinelink online inmate locator system, https://www.vinelink.com/#/search, his
status was returned as follows:
Madden, Mark A.
Out of Custody
On July 16, 2006, Madden was released on parole from three sentences in
Franklin County, Pennsylvania. (Doc. 10-1, pp. 2-5). At that time, his maximum
sentence expiration date was November 21, 2014. (Id. at p. 2).
On December 17, 2008, Madden was arrested by the Federal Bureau of
Investigation and charged with new federal crimes of bank fraud and conspiracy to
commit bank fraud in the United States District Court for the Southern District of
New York. (Id. at p. 7). On October 22, 2009, Madden entered a guilty plea and was
sentenced to four, concurrent, six year terms of imprisonment. (Id. at pp. 9-14;
United States v. Madden, No. 08-CR-1278 (S.D.N.Y)).
Subsequent to his release by federal authorities, Madden was returned to
Pennsylvania and charged with violating his parole. (Doc. 10-1, p. 16). On May 9,
2014, Madden waived his right to a parole revocation hearing and right to counsel,
and admitted that he was convicted of the new federal offenses in violation of his
parole. (Id. at p. 18). On July 30, 2014, the PBPP revoked Madden’s parole based
on the new federal convictions and recommitted him as a convicted parole violator
to serve twenty-four months backtime. (Id. at p. 20). The PBPP established his
parole violation maximum date as September 10, 2022. (Id.)
In August 2014, Madden filed an administrative appeal challenging the
PBPP’s July 30, 2014 decision. (Id. at pp. 22-24). On October 30, 2014, the PBPP
denied the administrative appeal, and affirmed the July 30, 2014 decision. (Id. at pp.
On December 15, 2014, Madden initiated proceedings in the Pennsylvania
Commonwealth Court. (Id. at pp. 31-34). On December 29, 2014, the
Commonwealth Court quashed Madden’s petition for review as untimely filed. (Id.
at p. 38). On January 7, 2015, Madden filed a motion for reconsideration. (Id. at pp.
40-42). The Commonwealth Court denied the motion for reconsideration on
January 12, 2015. (Id. at p. 44). Madden did not file an appeal to the Pennsylvania
The instant petition was filed on February 27, 2015. (Doc. 1).
Madden’s petition pursuant to 28 U.S.C. § 2254 challenges the PBPP’s
revocation of his parole and calculation of his parole violation maximum date.
Absent unusual circumstances, federal courts will not consider the merits of a claim
for habeas corpus unless the petitioner has complied with the exhaustion
requirement set out at 28 U.S.C. § 2254(b)(1)(A). This provision requires that the
petitioner give the state courts a fair opportunity to review allegations of
constitutional error before seeking relief in federal court. See Baldwin v. Reese, 541
U.S. 27, 29 (2004). Pursuant to the habeas statute, a petitioner has not exhausted
the remedies available in the courts of the state “if he has the right under the law of
the State to raise, by any available procedure, the question presented.” 28 U.S.C. §
2254(c). Petitioner bears the burden of demonstrating that he has satisfied the
exhaustion requirement. See Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).
To properly exhaust a claim involving a determination by the PBPP, the
petitioner must first file a petition for administrative review with the PBPP within
thirty days of the mailing date of the PBPP’s decision. See 37 Pa.Code § 73.1(a).
After an administrative appeal to the PBPP, a petitioner must present his claims to
the Pennsylvania Commonwealth Court. See 42 Pa.C.S.A. § 763(a); Bronson v.
Pennsylvania Bd. of Prob. and Parole, 491 Pa. 549, 421 A.2d 1021 (1980). If
dissatisfied with the result, petitioner must then file a Petition for Allowance of
Appeal with the Pennsylvania Supreme Court. See 42 Pa.C.S.A. § 724; McMahon v.
Pennsylvania Bd. of Prob. and Parole, 504 Pa. 240, 470 A.2d 1337 (1983). See also
Pagan v. Pennsylvania Bd. of Prob. and Parole, No. 08-0150, 2009 WL 210488 *3
(E.D. Pa. January 22, 2009). If petitioner fails to seek review from the Supreme
Court of Pennsylvania, then the state claim is unexhausted. See Williams v.
Wynder, 232 F. App’x 177, 181 (3d Cir. 2007).
Madden fails to demonstrate that he satisfied the exhaustion requirement.
Initially, he filed a petition for administrative review of the revocation with the
PBPP, which affirmed the decision. (Doc. 10-1, pp. 22-24). A petition for review was
filed in the Pennsylvania Commonwealth Court on December 15, 2014, and, on
December 29, 2014, the court quashed the appeal as untimely. (Id. at pp. 31-38).
Madden failed to file an appeal in the Pennsylvania Supreme Court. As such, he
has not exhausted his state court remedies and the time to do so has expired. See
Pa. R.A.P. 1113(a) (“a petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days after the entry of the order of
the Superior Court or the Commonwealth Court sought to be reviewed”).
Madden’s failure to timely present his claims at the state level constitutes an
independent and adequate state ground sufficient to support a procedural default of
his claims. See Barnhart v. Kyler, 318 F. Supp.2d 250 (M.D. Pa. 2004). The merits
of his procedurally defaulted claims cannot be reviewed unless he demonstrates
either cause for the procedural default and actual prejudice, or that a fundamental
miscarriage of justice will result if the court does not review the claims. See
McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Caswell v. Ryan, 953 F.2d
853, 861-62 (3d Cir. 1992). To demonstrate “cause” for a procedural default, he must
point to some objective external factor which impeded his efforts to comply with the
state’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice”
will be satisfied only if he can demonstrate that the outcome of the state proceeding
was “unreliable or fundamentally unfair” as a result of a violation of federal law.
See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993). Madden has not established
sufficient cause for his default or demonstrated actual prejudice that would justify
overlooking the default in this case. See Cristin v. Brennan, 281 F.3d 404, 412 (3d
Cir. 2002). Nor is there any indication that a failure to review his claim will result in
a fundamental miscarriage of justice.
Notably, even if Madden properly presented his claims to the state courts, he
would not be entitled to federal relief. The court may deny a petition for habeas
corpus, notwithstanding the petitioner’s failure to exhaust state court remedies.
See 28 U.S.C. § 2254(b)(2). Madden claims that he was not provided with a timely
revocation hearing, that the PBPP lacked the authority to establish a parole
violation maximum date, and that the recommitment range ordered by the PBPP
Although Madden claims that he was not provided with a timely revocation
hearing, he explicitly waived his right to a revocation hearing on May 9, 2015.
Further, the PBPP was not required to provide him with a hearing until he
completed his federal sentence on May 5, 2014. The United States Supreme Court
has rejected similar claims that a parolee’s due process rights were violated when
he had to wait to complete a sentence before having a parole violation hearing. See
Moody v. Daggett, 429 U.S. 78 (1976). In Moody, the Court found that the alleged
effects of the delay in having a parole violation hearing, including loss of witnesses
and delay re-integrating into society, did not rise to the level of a grievous loss of a
liberty interest that must be rectified by an early revocation hearing. Id. at 87-88 &
n.9; see also Heath v. U.S. Parole Com’n, 788 F.2d 85, 90-91 (2d Cir. 1986) (holding
that a federal parolee serving independent intervening sentence in state custody
has no constitutional right to a prompt revocation hearing). Thus, the PBPP was
not required to provide Madden with a hearing until he completed his federal
sentence and was returned to Pennsylvania on the PBPP’s warrant.
Madden next claims that the PBPP lacked the authority to establish a parole
violation maximum date. It is well-established that Pennsylvania’s parole statute is
constitutional, and pursuant to the statute, the PBPP has the “exclusive power”
to “parole and reparole, commit and recommit for violations of parole.” 61
Pa.C.S.A. § 6132(a)(1)(i); see also United State ex rel. Lawson v. Cavell, 425 F.2d
1350, 1352 (3d Cir. 1970); Commonwealth v. Reese, 774 A.2d 1255 (Pa. Super. 2001)
(noting that, for prisoners whose maximum sentence is two years or more, the
PBPP has the exclusive power to parole and reparole, commit and recommit for
violations of parole, and to discharge from parole, and may extend the expiration of
an offenders’ maximum sentence upon his recommitment as a convicted parole
violator). Furthermore, if a parolee is recommitted for having committed a crime
while on parole, he is not entitled to credit for any of the time he spent on parole.
See 61 Pa.C.S.A. § 6132(a)(2). Therefore, the PBPP had the authority to revoke
Madden’s parole, impose and extend the expiration of his
original maximum sentence, and did not err when it calculated Madden’s parole
violation maximum date without credit for his time spent on parole.
Lastly, the PBPP recommitted Madden as a convicted parole violator to serve
twenty-four months backtime for three counts of bank fraud and one count of
conspiracy to commit bank fraud. (Doc. 10-1, pp. 20, 28-29). The PBPP determined
that these federal offenses were closely related to the listed offense of forgery, which
has a six to twelve month recommitment range. (Id.; 37 Pa. Code §§ 75.1-75.2). The
PBPP noted that, when combined, the maximum recommitment range was fortyeight months. (Id.) Thus, the twenty-four month recommitment range imposed by
the PBPP was within the presumptive range for convicted parole violators.
Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)(A), unless a circuit justice or judge issues a
certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant has
made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003).
Because reasonable jurists could not disagree with the resolution of this petition,
there is no basis for the issuance of a COA.
In accordance with the foregoing, the petition for writ of habeas corpus will
An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
December 21, 2016
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