IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DARNELL HUTCHINSON, :

: 4:09-cv-2543

Petitioner, :

: Hon. John E. Jones III

v. :

: Hon. J. Andrew Smyser

PENNSYLVANIA BOARD OF :

PROBATION AND PAROLE, et al., :

:

Defendants. :

MEMORANDUM

July 29, 2010

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation

(“R&R”) of Magistrate Judge J. Andrew Smyser (Doc. 18), filed on April 26,

2010, which recommends that Petitioner Darnell Hutchinson’s (“Petitioner” or

“Hutchinson”) Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

(“the Petition”)(Doc. 1) be denied because the claims have not been exhausted in

state court and have been procedurally defaulted. Petitioner filed objections to the

R&R on May 18, 2010. (Doc. 21). 

On June 8, 2010, we issued an Order directing the Respondents to file a a

response to the Petitioner’s objections. We specifically directed Respondents to

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address whether the claims raised in the instant habeas petition have been

previously raised and, if so, whether they have been exhausted. (Doc. 22). 

Respondent filed a response on June 24, 2010. (Doc. 23). Although not ordered to

do so by this Court, Petitioner filed a reply to the Respondent’s submission on July

8, 2010. (Doc. 24). This matter is accordingly ripe for our review.

II. STANDARD OF REVIEW

When objections are filed to the report of a magistrate judge, the district court

makes a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1);

United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept,

reject, or modify, in whole or in part, the magistrate judge’s findings or

recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §

636(b)(1) permits whatever reliance the district court, in the exercise of sound

discretion, chooses to place on a magistrate judge’s proposed findings and

recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423

U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984). 

III. DISCUSSION

The instant Petition arises out of Petitioner’s belief that the Respondent,

Pennsylvania Board of Probation and Parole, has miscalculated his minimum and

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maximum release dates on sentences Petitioner is serving as a result of multiple

state court convictions. Petitioner also argues that he received ineffective assistance

of counsel in presenting his petition for review in the Commonwealth Court.

Magistrate Judge Smyser concluded that “[t]here is not anything presented in

the history of the petitioner’s treatment at the hands of the Pennsylvania Board of

Probation and Parole that has been set forth by the petitioner that gives rise to a

basis for finding that his federally protected rights have been violated, that he has

not received due process, or that he has not been effectively represented by

counsel.” (Doc. 18 at p. 6). Specifically Magistrate Judge Smyser concluded that

the Petitioner attempts to raise a claim in the instant Petition that has not been raised

in state court, and thus this claim is not exhausted and has been procedurally

defaulted.

Within his objections, Plaintiff argues that he did in fact raise the issue1

 in the

instant petition in state court, and attaches an exhibit to his objections (Exhibit 7,

Petitioner’s first petition to the Commonwealth Court, located at Doc. 21-3, p. 2),

that, upon first blush, appeared to have merit and thus caused the Court to order

additional briefing. 

1

 Specifically, the issue that appears to have been raised in both the state court petition

and on the instant federal petition involves whether a state sentence Petitioner was serving was

appropriately “stopped from running” while he was serving backtime for other new convictions.

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However, after reviewing the parties’ supplemental submissions, it is evident

to the Court that Magistrate Judge Smyser’s recommendation of dismissal for

Petitioner’s failure to exhaust his claims in state court and the procedural default of

those claims is correct and shall be adopted by this Court for the reasons that

follow.

First, with regard to Petitioner’s sentence calculation claim, it is evident that

Petitioner has not exhausted this claim and he has procedurally defaulted on it. 

Petitioner did not attempt to challenge his sentence calculation (that occurred as

result of his recommitment on a parole violation) until he filed a mandamus action

against the Board of Probation and Parole and the Department of Corrections on

February 21, 2007.2

 In this action, Petitioner challenged his recommitment as a

parole violation and the sentence calculations that resulted. However, this action

was filed in the Commonwealth Court’s original jurisdiction, and that court lacks

original jurisdiction over challenges to the Board of Probation and Parole’s

revocation or recalculation decisions. Claims of that sort must be filed in the

Commonwealth Court’s appellate jurisdiction. Thus, on May 1, 2007, the

2

 It is well to note that this action was filed almost 19 years after the parole violation

maximum sentence date on Petitioner’s original sentence was established, more than 14 years

after he was re-paroled from that sentence, and nearly 7 years after the parole violation

maximum date on that sentence expired.

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mandamus action was dismissed.3

 Thus, it is evident that Petitioner simply has not

exhausted his state remedies with respect to his sentence calculation claim. 

Petitioner has also procedurally defaulted on this claim. Plaintiff had full

opportunity to appeal his parole revocation and recommitment and the subsequent

re-calculation of his sentence maximum, however he did not do so. Further,

Petitioner has not shown any cause to excuse his default.

Next, we find that Petitioner’s ineffective assistance of counsel claim must

also be dismissed. Petitioner specifically claims that his parole revocation counsel

was ineffective “by not requesting the original or copy of the original Board

decision [calculating his maximum release date].” (Doc. 1, Ground 2). Courts in

this Circuit have consistently concluded that there is no right to counsel in parole

revocation proceedings and rejected claims of ineffective assistance of counsel. See

Burgess v. Holt, Civ. No. 06-cv-1954 (Vanaskie, J.); Simmons v. Coleran, 2005 WL

2783001 (E.D. Pa. Oct. 24, 2005); Riley v. Myers, 2002 WL 31845865 (E.D. Pa.

Dec. 18, 2002); Person v. Pa. Bd. of Prob. & Parole, 1999 WL 973852 (E.D. Pa.

Oct. 20, 1999). Thus, because Petitioner does not have a right to counsel in a parole

3

 Even assuming arguendo that the mandamus action was the appropriate mechanism for

Petitioner to challenge his parole revocation and recommitment, Petitioner did not appeal the

dismissal of the mandamus action to the Pennsylvania Supreme Court. 

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revocation proceeding that is secured by the United States Constitution or laws of

the United States, his claim for ineffective assistance of counsel must fail.4

IV. CONCLUSION

Thus, based on all of the foregoing, the R&R of Magistrate Judge Smyser

shall be adopted, the petition shall be denied and this matter shall be closed. An

appropriate Order shall issue.

4

 Further, even assuming arguendo that Petitioner could assert an ineffective assistance of

counsel claim on a parole revocation proceeding, Petitioner simply cannot meet the exacting

burden of Strickland v. Washington, 466 U.S. 668 (1984) based on the claim that his counsel

failed to request a copy of the original board decision. Additionally, we note that it appears

Petitioner’s counsel did receive a copy of the decision, inasmuch as the certified record in that

case shows that a copy was sent to Petitioner’s attorney. 

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