Gonzalez v. PA Board of Probation and Parole et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 11/30/16. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

JOSE LUIS GONZALEZ,
Petitioner
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE,
Respondent

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CIVIL NO. 4:CV-14-2326
(Judge Brann)

MEMORANDUM
November 30, 2016
Background
Jose Luis Gonzalez, an inmate presently confined at the Smithfield State
Correctional Institution, Huntingdon, Pennsylvania (SCI-Smithfield), filed this pro
se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Service of the
petition was previously ordered.
On December 20, 1995, Gonzalez was sentenced to a five (5) year, nine (9)
month to fifteen (15) year sentence following his conviction for burglary and
aggravated assault with serious bodily injury in the Court of Common Pleas of
Lebanon County, Pennsylvania. Following expiration of his minimum sentence,

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Petitioner was granted parole by the Pennsylvania Board of Probation and Parole
(Parole Board) on April 1, 2002.
On August 6, 2002, he was recommitted as a technical parole violator. See
Doc. 7-1, Exhibit C. Gonzalez was reparoled on September 8, 2003. By decision
dated July 25, 2005, Petitioner was again recommitted by the Parole Board as a
convicted parole violator after being found guilty of new crimes. See id., Exhibit
E. By decision dated September 7, 2005, Petitioner’s maximum sentence date was
recalculated to April 5, 2012. See id., Exhibit F.
Gonzalez was granted parole for a third time on November 6, 2006. On
March 5, 2010, Petitioner was again recommitted as a technical parole violator for
multiple technical violations and for his conviction for possession of heroin.
Gonzalez’s maximum release date was again recalculated to August 13, 2015. See
id. at Exhibit H.
Petitioner was granted parole for a fourth time on June 23, 2011. On
October 24, 2011, Petitioner was declared delinquent by the Parole Board.
Gonzalez was arrested in San Juan, Puerto Rico on or about October 28, 2011 and
charged with attempted burglary, a weapons offense, and failure to appear. He
was released after posting bail. See id. at Exhibit L. On May 10, 2012, Gonzalez
was recommitted as a technical parole violator to serve nine (9) months of back
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time and his maximum release date was computed as being January 9, 2016. See
id. at Exhibit K.
On or about August 26, 2013, Petitioner was convicted of the Puerto Rican
charges and sentenced to a consecutive term of not less then one (1) year, three (3)
months, and fifteen (15) days. On September 26, 2013, Gonzales was returned to
Pennsylvania custody.
The Parole Board issued Petitioner a parole revocation notice on May 9,
2014 . Gonzalez waived his right to a revocation hearing and appointment of
counsel. On July 10, 2014, the Parole Board issued a decision recommitting
Petitioner as a convicted parole violator to serve a twenty-four (24) month term.
A July 16, 2014 decision issued by the Parole Board extended Petitioner’s
maximum release date from August 31, 2015 to May 13, 2016. In response to an
administrative request by Petitioner, the Parole Board recalculated his maximum
release date as being March 2, 2016. See id. at Exhibit P.
Petitioner’s pending action alleges that the Parole Board violated his due
process rights by recalculating his maximum release date without providing him
prior notice of its intent to do so; written reasons explaining its decision; or an
opportunity for a evidentiary hearing. As relief, Petitioner requests that his initial
maximum release date of August 13, 2015 be reinstated.
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Respondent seeks dismissal of the petition on the grounds that Petitioner
failed to exhaust his state court remedies prior to seeking federal habeas corpus
relief and that the recalculation of Gonzalez’s maximum sentence date did not
violate due process.
Discussion
Exhaustion
Respondent argues in part that the present petition should not be entertained
because Petitioner failed to exhaust his available state court remedies before
initiating this action. A habeas petitioner must either show that the federal
constitutional claims asserted in the federal habeas petition have been “fairly
presented” to the state courts; that there is an absence of available state court
corrective process; or that circumstances exist rendering the available state court
process ineffective to protect the petitioner’s rights. See 28 U.S.C. § 2254(b).
However, as correctly recognized by the Respondent, the question of
exhaustion need not be resolved as the claim presented by Gonzalez is clearly
without merit. See 28 U.S.C. § 2254(b)(2)(a federal court can deny a habeas
petition “on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State”).

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Sentence Recalculation
Federal habeas corpus relief is awarded only when a state court’s decision
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the United States Supreme Court. Petitioner
contends that the Parole Board acted improperly when it recalculated his
maximum release date on his original sentence. As a convicted parole violator,
Gonzalez forfeited sentence credit for all time spent while released on parole.
Based upon the undisputed record, Petitioner’s original maximum sentence
date was June 14, 2010. Despite being granted parole multiple times on his
original sentence, Gonzalez was subsequently recommitted as either a technical
parole violator or because of new criminal convictions. As a result, Petitioner’s
maximum release date was recalculated several times by the Parole Board.
Gonzalez was last released on parole on June 23, 2011, at which time he had
1,512 days remaining to be served on his original sentence. As such, his maximum
sentence date was August 13, 2015.
The Parole Board most recently recalculated Gonzalez’s maximum release
date as being March 2, 2016. See Doc. 7-1, Exhibit P. In so doing, the Parole
Board credited Petitioner with a total of 624 days, from January 11, 2012 (the date
the Parole Board’s warrant was lodged) to September 26, 2013 (the date he
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returned to state custody) because those periods of confinement resulted from the
Parole Board’s issuance of a warrant. The 624 days were subtracted from the 1,512
days remaining on Gonzalez’s original sentence at the time of his last parole. The
remaining 888 days of back time resulted in a new maximum date of March 2,
2016. The 888 day period was deemed to commence on September 26, 2013, the
date Gonzalez was returned to Pennsylvania state custody.
This is hardly a situation where a habeas petitioner is being held beyond his
release date. Due to his own criminal behavior, Petitioner violated his parole and
lost credit for the time he spent unincarcerated. The challenged recalculation by
the Parole Board was undertaken in accordance with the § 6138(a) directive that,
absent limited exceptions, a parolee convicted of a new criminal offense while on
parole must serve the entire remaining balance of the original term, with no credit
for time served on parole.1 Since the Parole Board did not add any time onto
Gonzalez’s original sentence, there is no basis for a finding that a judicially
imposed sentence was altered. Moreover, it has been recognized that the
challenged Pennsylvania parole statute is constitutional. See Markel v.
Pennsylvania Board of Probation and Parole, Civil No. 1:12-1691, 2014 WL
It is also noted that parole revocation does not impose an additional sentence
or otherwise constitute a double jeopardy violation. Snyders v. Giroux, Civil No. 15521, 2016 WL 3456946 *4 (W.D. Pa. May 37, 2016).
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1818076 *4 (M.D. Pa. May 7, 2014)
In sum, the Parole Board had the discretion under controlling Pennsylvania
law to initiate a recalculation of Petitioner’s maximum release date on his original
sentence. Second, Petitioner has not established that the challenged recalculation
constituted an unreasonable application of clearly established Federal law.
Finally, there has been no showing by Petitioner that the Parole Board’s
recalculation was incorrect. Consequently, there is no basis for federal habeas
corpus relief. An appropriate Order will enter.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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