Opinion
Civil Action No. 19 - 1653
02-20-2020
CHARLES DAILEY, Petitioner, v. MAGISTRATE GREGORY BAZYLAK, et al. Respondents.
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 and that the Motion for Surveillance Recording (ECF No. 2) be denied as moot.
II. REPORT
This is the second Petition for Writ of Habeas Corpus filed by Petitioner Charley Dailey ("Petitioner") challenging the pending charges against him filed in Jefferson County, Pennsylvania. See Commonwealth v. Dailey, MJ-54303-CR-90-2017 (MDJ 54-3-03). For numerous reasons that are not entirely made clear in the Petition, he requests that this Court order the Respondents to dismiss the outstanding charges against him with prejudice.
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 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 he has not yet been arrested on the charges. There is currently an outstanding warrant for his arrest. This is the second habeas petition Petitioner has filed challenging these charges, the first being filed in this Court at 19-cv-441, which was dismissed by Court Order dated May 21, 2019.
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."). Thus, Petitioner has not satisfied the habeas "custody" requirement. Additionally, the Court notes that Petitioner is currently evading arrest, which disentitles him to call upon the resources of the Court for determination of his claims. See Degen v. U.S., 517 U.S. 820, 824 (1996) (citing Molinaro v. New Jersey, 396 U.S. 365, 366 (1970)). Accordingly, the Petition should be summarily dismissed for lack of jurisdiction since Petitioner is not in custody and was not in custody when he filed it.
The docket lists Petitioner's current mailing address as Phoenix, Arizona, but Petitioner makes clear that he left his home in Pennsylvania due to the outstanding charges and that even though he is currently homeless in Arizona he will not return home until the charges against him have been dismissed. --------
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 and that the Motion for Surveillance Recording (ECF No. 2) be denied as moot.
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: February 20, 2020.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Charles Dailey
19420 N. 5th Dr..
Phoenix, AZ 85027