# WISE v. MASON

> District Court, M.D. Pennsylvania · April 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10411635

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411635

## How later opinions describe it (automated extraction)

- holding that a party challenging the Board’s parole revocation decision is “required to exhaust his available state remedies by filing a petition for allowance of appeal in the Pennsylvania Supreme Court’
- recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY L. WISE, Civil No. 3:20-cv-1617
Petitioner (Judge Mariani)
v .
BERNADETTE MASON, et al. .
Respondents .
MEMORANDUM
Petitioner Anthony Wise (“Wise”) filed the instant petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging the calculation of his parole violation maximum
date. (Doc. 1). For the reasons discussed below, the Court will deny the petition.
Background
In 1986, Wise was charged with burglary and arson/endangering property in the
Court of Common Pleas of Dauphin County, Pennsylvania. (Doc. 1, p. 4). Following a jury
trial, Wise was found guilty of the charges. (/d.). On August 24, 1987, Wise was sentenced
to three and a half to ten years on the burglary charge, and three and a half to ten years on
the arson/endangering property charge, to be served consecutively. (/d.). On July 26,
2011, Wise was released on constructive parole to a state detainer sentence, with a parole
violation maximum date of May 2, 2020. (Doc. 10-1, p. 2). On December 23, 2013, Wise

was released on parole from the state detainer sentence. (/d. at p. 4). He was to remain on
parole until May 2, 2020. (Id.).

On March 13, 2017, while on Pennsylvania state parole, Wise was charged with new

criminal offenses in New Jersey. (/d. at pp. 6-10). Wise ultimately pled guilty to eluding and
resisting arrest in the New Jersey case. (/d. atp. 12). On July 20, 2018, the New Jersey
state court sentenced Wise to a total term of imprisonment of five years. (/d.).
On March 6, 2019, in the Court of Common Pleas of Cumberland County,
Pennsylvania, Wise pled guilty to retail theft and was sentenced to a one-to-two-year term
of imprisonment. (/d. at pp. 17-18). On December 12, 2019, Wise was returned to a
Pennsylvania state correctional institution.
On January 21, 2020, the Pennsylvania Board of Probation and Parole (the “Board”)
conducted a parole revocation hearing. On April 23, 2020, the Board issued a decision and
revoked Wise’s parole based on the retail theft conviction. (/d. at pp. 20-21). Wise was
recommitted to a state correctional institution as a convicted parole violator to serve twelve
months backtime. (/d.). The Board established his parole violation maximum date as
August 22, 2028. (Id.). Wise did not file an appeal or a petition for administrative review of
the April 23, 2020 decision under 37 Pa. Code. § 73.1. Wise did not file an action in the
Commonwealth Court of Pennsylvania or the Supreme Court of Pennsylvania to challenge
the April 23, 2020 decision.
ll. Legal Standards
The statutory authority of federal courts to issue habeas corpus relief for persons in
state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (‘AEDPA”). A habeas corpus petition pursuant to §
2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his
confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439
(1973). “[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct.
475, 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based
“on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.
A. — Exhaustion
Habeas corpus relief cannot be granted unless all available state remedies have
been exhausted, or there is an absence of available state corrective process, or
circumstances exist that render such process ineffective to protect the rights of the
applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on
principles of comity in order to ensure that state courts have the initial opportunity to review
federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178,
192 (3d Cir. 2000).
A state prisoner exhausts state remedies by giving the “state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845,
119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Respect for the state court system requires that the

petitioner demonstrate that the claims in question have been “fairly presented to the state
courts.” Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989).
To “fairly present” a claim, a petitioner must present its “factual and legal substance to the
state courts in a manner that puts them on notice that a federal claim is being asserted.”
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999): see also Nara v. Frank, 488 F.3d
187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner
presents the same factual and legal basis for the claim to the state courts). While the
petitioner need not cite “book and verse’ of the federal Constitution, Picard v. Connor, 404
U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), he must “give the State ‘the opportunity
to pass upon and correct’ alleged violations of its prisoners’ federal rights” before presenting
those claims here, Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865
(1995) (quoting Picard, 404 U.S. at 275, 92 S.Ct. 509).
To exhaust a claim that the Pennsylvania Board of Probation and Parole violated an
inmate's constitutional rights, the inmate must: (1) comply with the Board’s rules regarding
administrative review, (2) present his claims to the Commonwealth Court, and (3) file a
petition for allowance of appeal in the Pennsylvania Supreme Court. 37 Pa. Code § 73.1;
42 Pa.C.S.A. § 763(a); Pa. R.A.P. 1114. A petitioner challenging the Commonwealth
Court's denial of parole relief must seek review in the Pennsylvania Supreme Court in order
to satisfy the exhaustion requirement. If the petitioner fails to seek review from the

Pennsylvania Supreme Court, then the state claim is unexhausted. See Williams v.
Wynder, 232 F. App’x 177, 181 (3d Cir. 2007).
B. Merits Standard
Once a court has determined that the exhaustion requirement is met and, therefore,
that review on the merits of the issues presented in a habeas petition is warranted, the

scope of that review is set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides, in
pertinent part, that an application for a writ of habeas corpus premised on a claim previously
adjudicated on the merits in state court shall not be granted unless:
(1) [the decision] was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States; or
(2) {the decision] was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law “it is not
sufficient for the petitioner to show merely that his interpretation of Supreme Court
precedent is more plausible than the state court's; rather, the petitioner must demonstrate
that Supreme Court precedent requires the contrary outcome.” Matteo v. Superintendent,
171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court
decision to be an unreasonable application of federal law if the decision, “evaluated
objectively and on the merits, resulted in an outcome that cannot reasonably be justified
under existing Supreme Court precedent.” /d.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a
state court's findings of fact are correct. A petitioner may only rebut this presumption with
clear and convincing evidence of the state court’s error. Miller-El v. Cockrell, 537 U.S. 322,
341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual
issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual
decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir.
2005). This presumption of correctness applies to both explicit and implicit findings of fact.
Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner
“must clear a high hurdle before a federal court will set aside any of the state court's factual
findings.” Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).
Like the “unreasonable application” prong of paragraph (1), a factual determination
should be adjudged “unreasonable” under paragraph (2) only if the court finds that a rational
jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C.
§ 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v.
Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316
(1979). “This provision essentially requires the district court to step into the shoes of an
appellate tribunal, examining the record below to ascertain whether sufficient evidence
existed to support the findings of fact material to the conviction.” Breighner v. Chesney, 301
F. Supp. 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)). Mere
disagreement with an inferential leap or credibility judgment of the state court is insufficient

to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams v. Taylor, 529 U.S. 362,
408-09 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding
lacks evidentiary support in the state court record or is plainly controverted by evidence
therein should the federal habeas court overturn a state court’s factual determination.
Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.
lll. Discussion
In the habeas petition, Wise argues that he should have been released on May 2,
2020, the altered maximum date of his original sentence. (Doc. 1, p. 6). In response,
Respondents argue that Wise failed to exhaust his remedies. (Doc. 11).
A. — Exhaustion
To properly exhaust his claims against the Board, Wise was required to complete
three steps. First, Wise had to file a timely petition for administrative review of the Board’s
April 23, 2020 decision. See 37 Pa. Code § 73.1. Second, Wise was required to appeal
that decision to the Commonwealth Court of Pennsylvania in a timely manner. See 42 Pa.
C.S. § 763(a). Third, Wise was required to file a petition for allowance of appeal with the
Pennsylvania Supreme Court within thirty days of the Commonwealth Court’s decision. See
Pa. R.A.P. 1114. See also Williams, 232 F. App’x at 179-80 (holding that a party
challenging the Board’s parole revocation decision is “required to exhaust his available state
remedies by filing a petition for allowance of appeal in the Pennsylvania Supreme Court’).

Wise did not complete any of these steps—he did not file a request for administrative
relief with the Board, he did not take an appeal to the Commonwealth Court, and he did not
seek review in the Supreme Court of Pennsylvania. Consequently, Wise has procedurally
defaulted his claims and he has failed to demonstrate cause or prejudice to excuse the
default. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). As such, Wise’s challenge
to the Board’s parole revocation decision and calculation of his maximum sentence cannot
be reviewed in this Court and his habeas petition must be dismissed.
Even if the Court concluded that Wise’s claim was not procedurally defaulted, the
Court would find that the claim lacks merit. Wise is incarcerated because his parole was
revoked after he committed new criminal offenses while he was at liberty on parole. Under
Pennsylvania law, parolees who commit crimes during the period of parole are subject to
having their parole revoked. See 61 Pa.C.S.A. § 6138(a). A parolee whose parole is
revoked because of a new conviction does not receive credit for time at liberty on parole
against his maximum sentence. See 61 Pa.C.S.A. § 6138(a)(2). For all the foregoing
reasons, the Court will deny the habeas petition.
B. Ex Post Facto Claim
Wise also asserts that the Parole Board’s recalculation of his parole violation
maximum date violates his rights under the Ex Post Facto Clause of the Constitution. (Doc.
16). This claim is also meritless.

Article |, Section 10 of the United States Constitution provides that “[n]o State shall ...

pass any... ex post facto Law... .” U.S. Const. art. 1, § 10, cl. 1. The Ex Post Facto
Clause applies to a statute or policy change which “alters the definition of criminal conduct

or increases the penalty by which a crime is punishable.” Richardson v. Pennsylvania Bad.
of Probation and Parole, 423 F.3d 282, 287 (3d Cir. 2005) (quoting California Dep't of Corr.

v. Morales, 514 U.S. 499, 506 n.3 (1995)). An ex post facto inquiry looks at two relevant
factors: (1) whether there was a change in the law or policy which has been given
retrospective effect, an (2) whether the offender was disadvantaged by the change.
Richardson, 423 F.3d at 288 (citing Weaver v. Graham, 450 U.S. 24, 29 (1981)). In order to
violate the Ex Post Facto Clause, a retroactive change to the law must create a “sufficient
risk of increasing the measure of punishment attached to the covered crimes’; a
“speculative and attenuated possibility of . . . increasing the measure of punishment’ is not
sufficient. Morales, 514 U.S. at 509.
Although there may be some instances where “[rletroactive changes in laws
governing parole of prisoners . . . may be violative of [the Ex Post Facto Clause],” Garner v.
Jones, 529 U.S. 244, the Supreme Court has also noted that there is an “inherent difficulty
in deciding whether a retroactive change to parole policy constitutes an Ex Post Facto
violation, particularly considering the discretion generally afforded to parole boards in
making the ultimate parole determination.” Richardson, 423 F.3d at 288. A prisoner carries
“the ultimate burden of establishing that the measure of punishment itself has changed,”

Garner, 529 U.S. at 255, and “must show that as applied to his own sentence the law
creates a significant risk of increasing his punishment,” Morales, 514 U.S. at 510 n.6.
Here, Wise was sentenced on August 4, 1987. At the time Wise was sentenced in
1987, convicted parole violators were not entitled to credit for time at liberty on parole. See
Young v. Commonwealth, 409 A.2d 843 (Pa. 1979). Wise has not identified any law or
policy that he claims the Board applied retroactively to him that led to him facing any new
punishment. Instead, the revocation of Wise’s parole and the recalculation of his parole
violation maximum date were done in accordance with Pennsylvania state law and were a

consequence of Wise’s criminal conviction and the Board’s exercise of its statutory
authority. Accordingly, the habeas petition will also be denied on this ground.
IV. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), 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-E/, 537 U.S. at 327. As the
Supreme Court has explained,
[w]hen the district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim, a COA should
10

issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Wise failed to demonstrate that a certificate
of appealability should issue.
V. Conclusion
The Court will deny Wise’s application (Doc. 1) for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, and a certificate of appealability will not issue. A separate Order shall
issue.

CPZ
Coad
Robert D. Mariani___
United States District Judge
Dated: April / 2 , 2022

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411635. Public record. Not legal advice.