UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

SEAN MILLER, :

:

Petitioner : No. 4:CV-10-0647

:

vs. : (Complaint Filed 03/25/10) 

:

PENNSYLVANIA BOARD OF :

PROBATION AND PAROLE, et al., : (Judge Muir)

:

Respondents :

MEMORANDUM AND ORDER

July 12, 2010

Sean Miller, an inmate confined at the State

Correctional Institution, Frackville (“SCI-Frackville”),

Pennsylvania, filed this petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. (Doc. 1). Miller challenges

a decision by the Pennsylvania Board of Probation and Parole

(“the Board”) to recalculate his parole maximum date, and

deny him credit for the time he spent in pre-sentence

confinement on new criminal charges. The petition is ripe for

disposition. For the reasons that follow, the petition will

be denied. 

Background

On September 9, 2002, Miller was sentenced to a term

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of 1 year, 6 months to 5 years imprisonment for committing

the crime of Possession with Intent to Deliver a Controlled

Substance. (Doc. 11, Ex. A, Att. 1, Sentence Status

Summary). His original controlling minimum sentence was

April 3, 2003 and his original controlling maximum sentence

was October 3, 2006. Id. 

On June 1, 2004, the Board granted Miller parole and 

Miller was released to the Allentown Community Corrections

Center. (Doc. 11, Ex. A, Att. 2, Order to Release on Parole

and Att. 3, Supervision History). 

On January 4, 2006, while on parole, Miller was

arrested in the State of New York on drug charges. (Doc. 11,

Ex. A, Att. 3, Supervision History). 

On June 13, 2006, Miller was convicted of the crime

of Possession of a Controlled Substance in the 4th Degree and

sentenced to a determinate sentence of 31⁄2 years of

incarceration with 2 years of post release supervision. 

(Doc. 11, Ex. A, Att 4, Amended Uniform Sentence &

Commitment). Miller was then committed to the custody of the

New York State Department of Correctional Services to serve

his sentence. Id. 

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On June 27, 2008, upon the completion of his New York

state sentence, Miller was returned to the Pennsylvania

Department of Corrections (“DOC”). (Doc. 11, Ex. A, Att. 5,

DOC Moves Report). 

On July 29, 2008, the Board held a combined

violation/revocation hearing for Miller at SCI-Frackville,

where he was represented by counsel and the Board’s Agent

provided evidence of his violation of the conditions of his

parole and his New York conviction while on parole. (Doc.

11, Ex. A, Att. 6, Hearing Transcript). 

By Notice of Board Decision mailed September 18, 2008,

the Board found the following: 

As recorded on September 12, 2008, the Board of

Probation and Parole rendered the following decision

in your case: 

Recommit to a state correctional institution

as a technical parole violator to serve 6

months backtime, and as a convicted parole

violator to serve 18 months concurrently, for

a total of 18 months backtime. 

– 6 months for violation of condition #1,

leaving the district without permission,

Evidence relied on: your admission.

Reasons: violations established. Declared

delinquent by the Board. 

– 18 months for the offense of Possession of

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a Controlled Substance

Evidence relied on: certified copy of court

record proving conviction. Your

acknowledgment of conviction. 

Reason: Conviction in a court of record

established. 

While confined, you must comply with the institutions

prescriptive program requirements and have no

misconducts. You must participate in drug and

alcohol counseling. 

Review in or after December 2009. 

If you wish to appeal this decision, you must file a

request for administrative relief with the Board

within thirty days of this order. This request shall

set forth specifically the factual and legal basis

for the allegations, see 37 PA Code Sec. 73. You

have the right to an attorney in this appeal and in

any subsequent appeal to the Commonwealth Court. 

(Doc. 11, Ex. A, Att. 7, Notice of Board Decision). The

Board also recalculated Miller’s parole violation maximum

date of October 3, 2006, to his new maximum date of October

9, 2010. (Doc. 11, Ex. A, Att. 8, Order to Recommit). 

On October 12, 2008, Miller filed a request for

administrative review with the Board, objecting to his

recomputed maximum sentence date of October 9, 2010. (Doc.

11, Ex. A, Att. 9, Request for Review). Specifically, Miller

argued that his maximum date should be reduced by 150 days

during which he was incarcerated on the detainer. Id. 

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By Notice of Board Decision mailed December 17, 2008, 

the Board found the following: 

As recorded on December 17, 2008, the Board of

Probation and Parole rendered the following decision

in your case: 

Modify Board action of 9/12/2008 to now read:

Recommit to a state correctional institution

as a technical parole violator to serve 6

months backtime, and as a convicted parole

violator to serve 12 months concurrently, for

a total of 12 months backtime. 

– 6 months for violation of condition #1,

leaving the district without permission,

Evidence relied on: your admission.

Reasons: violations established. Declared

delinquent by the Board. 

– 12 months for the offense of Possession of

a Controlled Substance

Evidence relied on: certified copy of court

record proving conviction. Your

acknowledgment of conviction. 

Reason: Conviction in a court of record

established. 

While confined, you must comply with the institutions

prescriptive program requirements and have no

misconducts. You must participate in drug and

alcohol counseling. 

Review in or after June 2009. 

If you wish to appeal this decision, you must file a

request for administrative relief with the Board

within thirty days of this order. This request shall

set forth specifically the factual and legal basis

for the allegations, see 37 PA Code Sec. 73. You

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have the right to an attorney in this appeal and in

any subsequent appeal to the Commonwealth Court. 

(Doc. 11, Ex. A, Att. 10, Notice of Board Decision). 

Although the Board modified Miller’s recommitment period from

18 months to 12 months, it maintained Miller’s parole

violation maximum date of October 29, 2010. Id. 

On December 23, 2008, the Board responded to Miller’s

counseled request for administrative relief with the

following: 

This is in response to your administrative

appeal received October 3, 2008, which

objects to the Board decision mailed

September 18, 2008. In addition, because you

represent Mr. Miller in this matter, his

attempt to file a pro se appeal cannot be

accepted and is being forwarded to you with

this response. Specifically, you object to

the 18-month recommitment period and you

allege that the Board failed to give Mr.

Miller credit for all time served exclusively

on the Board’s warrant. 

To the extent you object to the 18-month

recommitment period, your appeal is dismissed

as moot. On December 17, 2009, the Board

mailed a decision that modified the

revocation decision mailed September 18, 2008

by changing the recommitment period imposed

for Possession of a Controlled Substance from

18 months to 12 months. This change reflects

the appropriate range for a second offense of

possession of a controlled substance under 37

Pa.Code § 75.2. 

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To the extent you allege that the Board

failed to give Mr. Miller appropriate credit,

your appeal is denied. You do not allege that

Mr. Miller is entitled to any specific period

of credit and a review of the record reflects

that he received appropriate credit from the

Board. For your reference, a copy of Mr.

Miller’s PBPP 39 is enclosed. 

Accordingly, the Board decision mailed

September 18, 2008 has been REVERSED in

regards to the 18-month recommitment period

and AFFIRMED in regards to the October 29,

2010 max date. 

(Doc. 11, Ex. A, Att. 11, Appeal Decision). 

On January 6, 2009, Miller filed a petition for review

in the Commonwealth Court, challenging the Board’s

recalculation of his maximum sentence date and failure to

give him 175 days of credit for pre-sentence confinement on

his new criminal charges. (Doc. 11, Ex. B, Miller v. Pa. Bd.

of Prob. and Parole, Docket No. 49 CD 2009, copy of docket

sheet). 

On June 18, 2009, the Commonwealth Court affirmed the

Board’s decision to recalculate Miller’s maximum sentence

date of October 29, 2010. (Doc. 11, Ex. C, Opinion). 

On July 20, 2009, Miller filed a petition for

allowance of appeal of the Commonwealth Court’s decision to

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the Pennsylvania Supreme Court. (Doc. 11, Ex. B, Miller v.

Pa. Bd. of Prob. and Parole, Docket No. 49 CD 2009, copy of

docket sheet). 

By Order dated December 17, 2009, the Pennsylvania

Supreme Court denied Miller’s petition for allowance of

appeal. (Doc. 11, Ex. D, Order). 

On March 25, 2010, Miller filed the instant action in

which he seeks credit for his pre-sentence detention on his

New York criminal charges. 

Discussion

It is well-settled that "there is no constitutional

or inherent right of a convicted person to be conditionally

released before the expiration of a valid sentence." 

Greenholtz v. Inmates of Nebraska Penal & Correctional

Complex, 442 U.S. 1, 7 (1979); see also Rauso v. Vaughn, 79

F. Supp.2d 550, 551 (E.D. Pa. 2000)(the federal Constitution

does not create an entitlement to parole). Furthermore, it

has been held that the Pennsylvania parole statute does not

create a liberty interest in the right to be paroled. Burkett

v. Love, 89 F.3d 135, 139 (3d Cir. 1996); Rodgers v. Parole

Agent SCI- Frackville, Wech, 916 F. Supp 474, 476-77 (E.D.

8

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Pa. 1996); McCrery v. Mark, 823 F. Supp. 288, 294 (E.D.Pa.

1993). However, the United States Court of Appeals for the

Third Circuit has held that:

[E]ven if a state statute does not

give rise to a liberty interest in

parole release under Greenholtz,

once a state institutes a parole

system all prisoners have a liberty

interest flowing directly from the

due process clause in not being

denied parole for arbitrary or

constitutionally impermissible

reasons. 

Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980). 

Accordingly, even where a state statute grants discretion to

the state parole board to condition or completely deny

parole, it may not permit "totally arbitrary parole decisions

founded on impermissible criteria." Id. Consequently, a

federal court may review a decision by a state parole board

for an abuse of discretion. Id. Upon such review, relief

will only be available if an applicant can show that parole

was arbitrarily denied based on some impermissible reason

such as "race, religion, or political beliefs," or that the

parole board made its determination based on "frivolous

criteria with no rational relationship to the purpose of

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parole . . . ." Id. at 236 n.2. 

In Morrissey v. Brewer, 408 U.S. 471 (1972), the

United States Supreme Court addressed a habeas petition filed

by a state inmate who alleged that he had not received due

process during parole revocation procedures. The Court

recognized that a federal court should not upset a decision

of a state parole board unless the determination is based on

constitutionally impermissible reasons such as race,

religion, or ethnicity or rendered in the absence of the

following due process protections:

(a) written notice of the claimed violations

of parole; (b) disclosure to the parolee of

evidence against him; (c) opportunity to be

heard in person and to present witnesses and

documentary evidence; (d) the right to

confront and cross-examine adverse witnesses

(unless the hearing officer specifically

finds good cause for not allowing

confrontation); (e) a 'neutral and detached'

hearing body such as a traditional parole

board, members of which need not be judicial

officers or lawyers; and (f) a written

statement by the factfinder as to the

evidence relied on and reasons for revoking

parole.

Id. at 488-89.

Miller does not allege that he was denied parole on

the basis of his race, religion or ethnicity. As previously

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noted, it has been repeatedly recognized that Pennsylvania

state law does not confer its inmates with a legally

protected interest in parole eligibility. 

To the extent that Miller claims that the Board erred

in recalculating his parole maximum date, when, as in the

instant action, the Board imposes backtime, it establishes a

new parole eligibility date for the parolee. See Krantz v.

Com., Pa. Bd. of Probation and Parole, 483 A.2d 1044 (Pa.

Cmwlth. 1984). When computing the time yet to be served on

the original sentence, the convicted parole violator’s street

time is added to the original maximum expiration date to

create a new maximum expiration date. Palmer v. Pa. Bd. of

Probation and Parole, 704 A.2d 195 (Pa. Cmwlth. 1997). 

In the instant case, when Miller was released on

parole on June 1, 2004, his parole violation maximum date was

October 3, 2006, which left 854 days remaining on his

sentence. Miller was convicted of new criminal conduct and

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as a convicted parole violator1

, he automatically forfeited

credit for all the time he spent on parole.2

 On June 27, 2008,

the day Miller was released from his New York sentence, he

was turned over to the Pennsylvania Deportment of Corrections

to begin serving his backtime on his original sentence. 

Adding 854 days to June 27, 2008, yields a new parole

violation maximum date of October 29, 2010. Thus, after

recommitting him as a convicted parole violator, the Board

properly recalculated Miller’s sentence in accordance with

Pennsylvania’s Prisons and Parole Code. 

To the extent that Miller seeks credit for 175 days

he spent in pre-sentence confinement on his New York state

conviction, in Gaito v. Pa. Bd. of Probation and Parole, 412

A.2d 568, 571 (Pa. 1980), the Pennsylvania Supreme Court held

1

Pursuant to section 6138(a)(1) of the Pennsylvania

Prisons and Parole Code, a parolee may be recommitted as a

convicted parole violator if the parolee commits any crime

punishable by imprisonment, while on parole, for which he is

convicted or found guilty. 61 Pa.C.S. § 6138(a)(1). 

2

Pursuant to section 6138(2), a convicted parole violator

“shall be given no credit for time at liberty on parole.” 61

Pa.C.S. § 6138(2). Upon recommitment as a convicted parole

violator, the parolee must serve the remainder of the term

which he would have been compelled to serve had he not been

paroled with no credit given for street time. Id. 

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that “if a defendant remains incarcerated prior to trial

because he has failed to satisfy bail requirements on the new

criminal charges, then the time spent in custody shall be

credited to his new sentence,” and not to his original

sentence. Specifically, the Court held: 

If a defendant is being held in custody

solely because of a detainer lodged by the

Board and has otherwise met the requirements

for bail on the new criminal charges, the

time which he spent in custody shall be

credited toward his original sentence. If a

defendant, however, remains incarcerated

prior to trial because he has failed to

satisfy bail requirements on the new criminal

charges, then the time spent in custody shall

be credited to his new sentence. 

Gaito, 488 Pa. at 403-404. 

In the instant case, there is no record evidence that

Miller satisfied the bail requirements of the New York

sentencing court to allow him to receive pre-sentence

confinement credit on his original Pennsylvania state

sentence. Thus, pursuant to Gaito, Miller is not entitled to

credit on his original sentence for the 175 days spent in

pre-sentence confinement on his New York state sentence, as

that time has already been applied to his New York sentence. 

Case 4:10-cv-00647-MM-DB Document 16 Filed 07/12/10 Page 13 of 15
Consequently, the petition for writ of habeas corpus will be

denied. An appropriate Order accompanies this Memorandum

Opinion.

Dated: July 12, 2010

s/Malcolm Muir 

MUIR

United States District Judge

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UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

SEAN MILLER, :

:

Petitioner : No. 4:CV-10-0647

:

vs. : (Complaint Filed 03/25/10) 

:

PENNSYLVANIA BOARD OF :

PROBATION AND PAROLE, et al., : (Judge Muir)

:

Respondents :

ORDER

July 12, 2010

For the reasons set forth in the accompanying

Memorandum, IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas

corpus is DENIED. 

2. The Clerk of Court is directed to

CLOSE this case.

3. There is no basis for the issuance

of a certificate of appealabilty. 

See 28 U.S.C. § 2253(c). 

s/Malcolm Muir 

MUIR

United States District Judge

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