Opinion
CIVIL ACTION NO. 20-2503
12-04-2020
FRANK BRAXTON v. PHILADELPHIA DISTRICT ATTORNEY, et al.
REPORT AND RECOMMENDATION
Presently before the Court is a Petition for a Writ of Habeas Corpus filed by Frank Braxton ("Petitioner"), through counsel, pursuant to 28 U.S.C. § 2254. Petitioner seeks habeas relief based on three ineffective assistance of counsel claims. The Honorable Jeffrey L. Schmehl referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that this petition be DISMISSED as moot.
I. FACTUAL AND PROCEDURAL HISTORY
The facts set forth in this background and procedural history were gleaned from Petitioner's Habeas Corpus Petition, the Commonwealth's Response and the attached Exhibits ("Ex.").
On October 16, 2015, following a bench trial, the Court of Common Pleas of Philadelphia County convicted Petitioner of aggravated assault, simple assault, carrying a firearm without a license, carrying firearms on the public streets of Philadelphia, and possession of an instrument of crime. Pet. at 2; Resp. at 1; see also Commonwealth v. Braxton, No. 1550 EDA 2018, 2019 WL 5977195, at *1 (Pa. Super. Ct. Nov. 2019) ("1550 EDA 2018"). On January 14, 2016, the trial court sentenced him to six to twenty-three months in prison, followed by three years of probation. 1550 EDA 2018 at *1. Petitioner, however, filed Motion for Early Release on Parole which was ultimately granted, on April 25, 2016. See Criminal Docket CP-51-CR-11804-2014 ("Criminal Docket") at 8.
A year after sentence was imposed, Petitioner filed a timely, counseled, PCRA petition in which he argued that trial counsel was ineffective for failing to: (1) present relevant evidence that indicated that he did not possess the weapons referenced by the Commonwealth, and (2) question the victim regarding "his conviction for crimen falsi crimes." 1550 EDA 2018 at *2. On April 24, 2018, the PCRA court denied his petition and, on November 13, 2019, the Superior Court affirmed the denial. Resp. at 1; see also 1550 EDA 2018. Next, Petitioner sought discretionary review from the Pennsylvania Supreme Court but, on May 11, 2020, that, too, was denied. Resp. at 2; see also Criminal Docket at 12.
On January 13, 2020, Petitioner completed his term of probation and his sentence expired. See Criminal Docket at 12. Thereafter, on May 20, 2020, Petitioner filed the instant habeas petition in which he claimed Sixth and Fourteenth Amendment violations resulted from ineffective assistance of counsel. Pet. 6-8. The Philadelphia County District Attorney contends that Petitioner's claims should be dismissed, because he is no longer "in custody" as required by 28 U.S.C. § 2254(a). This Court agrees that this petition should be dismissed, inasmuch as Petitioner did not satisfy the custody requirement at the time he filed this petition.
II. DISCUSSION
28 U.S.C. § 2254(a) of the habeas corpus statute provides:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.Although Petitioner has filed a § 2254 habeas petition to challenge his 2015 state conviction and sentence, he is not permitted to challenge a completely expired sentence thereunder. Maleng v. Cook, 490 U.S. 488, 489-91 (1989). In order to challenge a state conviction, Petitioner must be still "in custody pursuant to the judgment of a State court." Lackawana Cnty. Dist. Atty. v. Coss, 532 U.S. 394, 399 (2001)(emphasis added). Petitioner had completed the sentence imposed for his 2015 conviction and was no longer imprisoned, on probation or parole as of January 2020. He filed this habeas petition four months after his sentence expired. Since Petitioner has already completed his state sentence, he is no longer in custody for purpose of § 2254, Maleng, 490 U.S. at 489-91, and this petition must be dismissed as moot.
Petitioner may challenge a current or pending sentence if this expired conviction could be used to enhance a new sentence, a scenario not presently before the Court. Coss, 532 U.S. at 401-402. --------
III. CONCLUSION
Petitioner is no longer "in custody," hence his claims may not be considered on their merits. Reasonable jurists would not debate the appropriateness of the court's procedural disposition of this petition; therefore, a certificate of appealability should not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 4th day of December, 2020, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that Petitioner's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) be DISMISSED, without an evidentiary hearing. Petitioner has neither demonstrated that any reasonable jurist could find this Court's procedural ruling debatable, nor shown denial of any Constitutional right; hence, there is no probable cause to issue a certificate of appealability.
Petitioner may file objections to this Report and Recommendation within fourteen (14) days of being served with a copy of it. See Local R. Civ. P. 72.1(IV). Failure to file timely objections may constitute a waiver of any appellate rights. It be so ORDERED.
/s/ Carol Sandra Moore Wells
CAROL SANDRA MOORE WELLS
United States Magistrate Judge