Opinion
Civil Action No. 19 - 441
05-02-2019
CHARLES DAILEY, Petitioner, v. MAGISTRATE GREGORY BAZYLAK, Respondent.
District Judge Nora Barry Fischer
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Petition for Writ of Habeas Corpus filed by Petitioner Charles Dailey (ECF No. 1) be summarily dismissed for lack of jurisdiction.
II. REPORT
Petitioner Charley Dailey ("Petitioner") has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, challenging the Respondent's authority to preside over his preliminary hearing for the outstanding charges against him in Jefferson County, Pennsylvania for theft by unlawful taking, receiving stolen property and conspiracy to commit theft by unlawful taking. See Commonwealth v. Dailey, MJ-54303-CR-90-2017 (MDJ 54-3-03). The charges stem from the alleged illegal operation of video slot machines in Brookville, Pennsylvania on or about March 6, 2017, that resulted in high cash payouts for Petitioner and his son. See ECF Nos. 1, 2. In his Petition, Petitioner argues that Respondent, Magisterial District Judge Gregory M. Bazylak, should recuse himself from the case due to his relationship with individuals involved in the matter, and he also claims that Judge Bazylak conspired with others, but it is unclear as to who he conspired with and what they conspired to do. Id. Petitioner requests that this Court dismiss the charges against him with prejudice. Id.
The Court takes judicial notice of court records and dockets of the Pennsylvania courts located on their online database at https://ujsportal.pacourts.us. See
The federal habeas statute gives this Court jurisdiction to entertain petitions for habeas relief only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a). Whether a habeas corpus petition is in custody for purposes of §§ 2241 and 2254 is determined at the time that the petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). The Supreme Court has defined "in custody" as a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983). A "restraint on freedom of movement of the degree associated with a formal arrest" exists where a person has been "deprived of his freedom of action in any significant way." Id. at 1124; Oregon v. Mathiason, 429 U.S. 492, 494 (1977). While the term "custody" is not limited solely to physical confinement, see Sevier v. Turner, 742 F.2d 262, 269 (6th Cir. 1984) (citing Spring v. Caldwell, 692 F.2d 994, 996 (5th Cir. 1982); Duvallon v. Florida, 691 F.2d 483, 484 (11th Cir. 1982); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 (3d Cir. 1975)), see also Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003) ("The meaning of 'custody' has been broadened so that it is no longer limited in the § 2254(a) context to physical custody alone but also applies where individuals are subject both to 'significant restraints on liberty . . . which were not shared by the public generally,' along with 'some type of continuing governmental supervision.'"),
[t]he custody requirement of the habeas corpus statute is designated to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).
Once again, the Court takes judicial notice that Petitioner has not yet been arrested for these charges although there exists an outstanding warrant for his arrest. "[A]n outstanding arrest warrant is not in itself sufficient to constitute 'custody' for purposes of the maintenance of a habeas petition." Prall v. Att'y Gen. of Rhode Island, C.A. No. 09-366, 2010 WL 737646, at *7 (D.R.I. Mar. 1, 2010) (collecting cases); see also Jones v. United States, No. 4:11CV00305, 2011 WL 3042023, at *3 (E.D. Ark. June 17, 2011) ("Based on her Petition, the allegedly outstanding arrest warrant . . . is the only even arguable 'restraint' on her liberty . . . . These allegations fall far short of demonstrating the kind of 'severe' and 'immediate' restraint upon liberty sufficient to invoke and maintain jurisdiction under the federal habeas statutes.").
In sum, the Petition for Writ of Habeas Corpus should be summarily dismissed for lack of jurisdiction since Petitioner is not in custody and was not in custody when he filed it.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that the Petition for Writ of Habeas Corpus filed by Petitioner Charles Dailey (ECF No. 1) be summarily dismissed for lack of jurisdiction.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Petitioner shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Petitioner's failure to file timely objections will constitute a waiver of his appellate rights.
Dated: May 2, 2019.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Charles Dailey
5101 North 17th Ave.
Phoenix, PA 85015
DiNicola v. DiPaolo, 945 F. Supp. 848, 854 n.2. (W.D. Pa. 1996) (court is entitled to take judicial notice of public records). The docket for Petitioner's case indicates that a criminal complaint was filed against Petitioner on March 29, 2017, but, Petitioner has not yet been arrested on these charges and currently has an outstanding warrant for his arrest.