ORTIZ v. PENNSYLVANIA BOARD OF PROBATION AND PEROLE

Filing 17

MEMORANDUM OPINION & ORDER re 2 Petition for Writ of Habeas Corpus filed by MACKENNETH ORTIZ dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 07/02/2018. (Mitchell, Robert)

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

MACKENNETH ORTIZ, HR-8194,
Petitioner,
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE,
Respondent.

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2:17-cv-1463

MEMORANDUM and ORDER

MacKenneth Ortiz an inmate at the State Correction Institution- Pine Grove has presented
a petition for a writ of habeas corpus (ECF No.2) seeking to challenge the recalculation of his
sentence by the Pennsylvania Board of Probation and Parole (“the Board”). For the reasons set
forth below the petition will be dismissed and because reasonable jurists could not conclude that
a basis for appeal exists, a certificate of appealability will be denied.
Ortiz was sentenced August 4, 2008 to a five to ten year period of incarceration upon his
plea of guilty to an array of charges at No. CP-51-CR-2076-2008 in the Court of Common Pleas
of Philadelphia County, Pennsylvania. At that time his minimum sentence expired on December
4, 2012 and his maximum sentence expired on December 4, 2017.1
Following a hearing by the Board, on September 12, 2012, the petitioner was granted
parole on or after December 4, 2012 with a maximum expiration date of December 4, 2017.2 He
was released on parole on December 4, 2012 and following his arrest on new charges, on
November 6, 2013 a warrant to detain was issued by the Board and forwarded to the
penitentiary.3 On November 19, 2013, the Board recommitted petitioner as an admitted technical
violator to serve six months.4 Following a formal Board hearing on December 27, 2013 his

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See: Exhibit B to the answer.
See: Exhibit C to the answer.
See: Exhibits F, G and H to the answer.
See: Exhibit K to the answer.

confinement was amended to require detention pending disposition of the new criminal charges.
It was also noted that the December 4, 2017 parole maximum was subject to change if Ortiz was
convicted on the new criminal charges.5 Following his conviction and the imposition of sentence
on the new charges, on December 11, 2014 petitioner waived a revocation hearing as a result of
the new conviction.6 On July 6, 2015 the Board entered a determination that as a result of his
new conviction, the action of December 27, 2013 was altered to delete the reparole portion and a
decision was made to recommit Ortiz as a technical violator to serve six months and to recommit
for a total of 36 months backtime was entered. This established a parole maximum of November
11, 2019.7 This maximum sentence recalculation is the basis for the present petition.
In making this calculation the Board denied petitioner credit for the period he was on
parole, and granted him credit for one day from November 6, 2013 through November 7, 2013
thereby concluding he owed backtime of four years eleven months and twenty-nine days and
arriving at a maximum date of November 11, 2019.8 In response to petitioner’s inquiry about this
calculation, the Board wrote:
The Board recommitted you as a convicted parole violator to 36
months for your new offenses…
The Board recalculated your maximum sentence date to November
11, 2019 based on your recommitment as a convicted parole violator.
The decision to recommit you as a convicted parole violator gave the
Board statutory authority to recalculate your sentence to reflect that
you received no credit for the period you were at liberty on parole…
The Board advised you of this potential penalty on the parole
conditions you signed on December 4, 2012. Additionally, the ability
to challenge the recalculation decision after it is imposed satisfied
your due process rights. In this case, the Board chose not to award
you credit for time at liberty on parole in recalculating your max date,
but this did not violate any constitutional provisions.
Finally, the Board correctly calculated your reparole eligibility date.
The Board recommitted you to serve 36 months. The commencement
of the original sentence for convicted parole violators is governed by
the Prisons and Parole Code. The statute provides that convicted
parole violators who are paroled from a state correctional institution
(“SCI”) and then receive another sentence to be served in an SCI must
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See: Exhibit L to the answer.
See: Exhibit N to the answer.
See: Exhibit P to the answer.
See: Exhibit Q to the answer.

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serve the new original sentence first. You were paroled from an SCI
on December 4, 2012 and you received new sentences to be served in
an SCI so you had to serve your original sentence first. Thus, you
became available to serve your original sentence when you were
sentenced on the new convictions on November 12, 2014 because you
were already recommitted as a technical parole violator.
The Board gave you one day of credit on your original sentence for
the period you were detained solely on the board detainer from
November 6, 2013 (date of board detainer) to November 7, 2014 (date
of detention in lieu of bail on the new criminal charges) … However,
the Board did not give you any credit for the period you were
incarcerated from November 7, 2014 to November 12, 2014 (date of
sentencing on the new convictions because you were confined on at
least on[e] of the new criminal charges and the board detainer during
this period. This is evidence[d] by the fact that you did not post bail
from the [new charge] … As such, credit for this time must apply to
your new sentence. Adding the 36-month recommitment term to the
November 12, 2014 availability date, minus the one day of credit you
received towards that term, yields a reparole eligibility date of
November 11, 2017.9 (emphasis added).
That is, petitioner was eligible for parole any time after November 11, 2017, but his
maximum sentence did not expire until he completed the five year unserved portion of his
original sentence, or on November 11, 2019. Indeed, on January 19, 2017, the Board determined
that the petitioner was ineligible for parole based on his unsatisfactory parole supervision history,
his lack of remorse, and other factors. The parole maximum date was noted as November 11,
2019.10
The relevant Pennsylvania statute, 61 Pa.C.S.A.§ 6137 does not create a mandatory
expectation of parole which has been determined to be a matter of grace. Rogers v. Pennsylvania
Board of Probation and Parole, 555 Pa. 285 (1999). In the absence of a state mandated right of
parole, parole is a matter of mere possibility and does not invoke a federally protected liberty
interest. Kentucky Department of Corrections v. Thompson, 490 U.S. 455 (1989). In
Connecticut v. Dumschat, 452 U.S. 458 (1981), the Court recognized that where there is no
liberty interest created, there is no constitutional basis for relief. Since federal habeas corpus
relief is premised on violations of constitutional proportion, no such factors exist here since the

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See: Exhibit T to the answer.
See: Exhibit V to the answer.

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reasons for denying parole were based on the plaintiff’s conduct both inside and outside the
institution and not on some arbitrary or capricious basis. Block v. Potter, 631 F.2d 233, 235 (3d
Cir.1980).
In Coady v. Vaughn, 251 F.3d 480,487 (3d Cir.2001), the Court observed that “federal
courts are not authorized by the due process clause to second-guess parole boards and the
requirements of substantive due process are met if there is some basis for the challenged
decision.”
Thus, the record clearly demonstrates that Ortiz’s continued incarceration is not the result
of a violation of any federally protected rights. Rather, the record demonstrates that at his time of
release on parole he still had five years remaining on his original sentence while he was only
ordered detained for an additional three years by the Board. Thus, the continuation of his
incarceration is fully supported by the record here and not based on any arbitrary or capricious
factors. For this reason, there is no demonstration that any action of the Board was contrary to
federal law as determined by the Supreme Court nor involved an unreasonable application of that
law and for these reasons he is not entitled to relief.
Accordingly, the petition will be dismissed and because reasonable jurists could not
conclude that a basis for appeal exists, a certificate of appealability will be denied.
An appropriate Order will be entered.

s/ Robert C. Mitchell
United States Magistrate Judge

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ORDER
AND NOW, this 2nd of July, 2018, for reasons set forth in the foregoing Memorandum,
the petition of MacKenneth Ortiz for a writ of habeas corpus (ECF No. 2) is DISMISSED, and
because reasonable jurists could not conclude that a basis for appeal exists, a certificate of
appealability is DENIED.

s/ Robert C. Mitchell
United States Magistrate Judge

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