Opinion
Civil Action 20-1156
02-28-2022
MICHAEL MCLAUGHLIN v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al.
REPORT AND RECOMMENDATION
ELIZABETH T. HEY, U.S.M.J.
This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Michael McLaughlin (“Petitioner”), who challenges his conviction and sentence of four years' probation in Commonwealth v. McLaughlin, CP-51-CR-0007870-2015 (Phila. C.C.P.). Doc. 2 at 1. Because Petitioner's sentence of probation has concluded, I recommend that the petition be dismissed as moot.
Pinpoint citations to documents filed in this court refer to the Court's ECF pagination.
This court did not receive the state court record from the Philadelphia court system. The procedural history is taken from the relevant state court docket entries, the parties' submissions, and the Pennsylvania Superior Court's memorandum opinions in Commonwealth v. McLaughlin, 3453 EDA 2016, 175 A.3d 1119 (table), 2017 WL 3699340 (Pa. Super. Aug. 28, 2017) (“Pa. Super. Direct”) and Commonwealth v. McLaughlin, 3021 EDA 2019, 240 A.3d 908 (table), 2020 WL 5362170 (Pa. Super. Sep. 8, 2020) (“Pa. Super. PCRA”).
On March 21, 2016, following a bench trial, the Honorable Rayford A. Means of the Court of Common Pleas of Philadelphia County convicted Petitioner of recklessly endangering another person (“REAP”) and possessing an instrument of crime (“PIC”). Pa. Super. Direct, 2017 WL 3699340, at *1; Commonwealth v. McLaughlin, CP-51-CR-0007870-201, Docket Sheet (“Docket Sheet”) (Disposition/Penalties section and first entry dated 3/21/16). On the same day, Judge Means sentenced Petitioner to consecutive terms of two years' probation on each of the two charges, for an aggregate sentence of four years' probation. Pa. Super. Direct, 2017 WL 3699340, at *1; Docket Sheet (Disposition/Penalties section).
Both of Petitioner's convictions are defined as misdemeanors under Pennsylvania law. See 18 Pa. C.S.A. §§ 907(a) (PIC is a misdemeanor of the first degree) and 2705 (REAP is a misdemeanor of the second degree); Pa. Super. Direct, 2017 WL 3693340, at *3-4 (addressing sufficiency of evidence to support PIC and REAP convictions).
Petitioner filed post-sentence motions on March 31, 2016, which were denied by operation of state law. Pa. Super. Direct, 2017 WL 3699340, at *1; Docket Sheet (entries dated 03/31/16 & 10/25/16). On October 25, 2016, Petitioner filed a pro se petition under the Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541, et seq., seeking reinstatement of his appellate rights, followed four days later by a Notice of Appeal to the Superior Court from the denial of his post-sentence motions. Pa. Super. PCRA, 2020 WL 5362170, at *1; Docket Sheet (entries dated 10/25/16 & 10/29/16). Petitioner moved to withdraw the PCRA petition as prematurely filed, and Judge Means subsequently denied the petition as moot. Pa. Super. PCRA, 2020 WL 5362170, at *1; Docket Sheet (entries dated 12/22/16 & 02/24/17). On August 28, 2017, the Superior Court affirmed the judgment of sentence, rejecting Petitioner's challenges to the sufficiency and weight of the evidence. Pa. Super. Direct, 2017 WL 3693340. Petitioner did not seek allowance of appeal in the Pennsylvania Supreme Court.
On September 20, 2017, Petitioner filed a timely pro se PCRA petition, followed seven days later by a pro se amended PCRA petition. Docket Sheet (entries dated 09/20/17 & 09/27/17). On October 21, 2019, following additional counseled and pro se submissions and multiple continuances, Judge Means denied Petitioner's PCRA petition. Pa. Super. PCRA, 2020 WL 5362170, at *2; Docket Sheet (entry dated 10/21/19). Petitioner appealed the denial of PCRA relief to the Superior Court, arguing that prior appellate counsel rendered ineffective assistance for failing to argue on appeal that the trial court abused its discretion in failing to bar admission of photographic evidence that had not been provided to the defense prior to trial. Pa. Super. PCRA, 2020 WL 5362170, at *2.
On February 28, 2020, while his PCRA appeal remained pending with the Superior Court, Petitioner filed the present habeas petition, alleging that the prosecution introduced photographic evidence at trial “without turning same over pretrial, ” and that trial and appellate counsel were ineffective for failing to object to the photographic evidence. Doc. 2 ¶ 12 (GROUNDS ONE-TWO). In his prayer for relief, Petitioner asked the court to vacate his verdict and noted that his sentence of probation would conclude within days. Id. at 15 (“Probation expires [03/16/2020]”).
The date Petitioner gave for the expiration of his probation is incorrect, as he was sentenced to four years' probation on March 21, 2016, and thus his probation expired on March 21, 2021. The five-day discrepancy is not relevant for present purposes.
On March 21, 2020 -- less than one month after Petitioner initiated this action -his sentence of four years of probation concluded. Pa. Super. PCRA, 2020 WL 5362170, at *3. On September 8, 2020, the Superior Court “affirm[ed] the dismissal of [Petitioner's] PCRA petition, albeit on different grounds, ” because he was no longer serving a sentence and was therefore not entitled to PCRA relief. Id. at *1, 3 (citing 42 Pa. C.S.A. § 9543(a)(1)(i)). Petitioner filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on January 26, 2021. Commonwealth v. McLaughlin, No. 371 EAL 2020, 244 A.3d 814 (table) (Pa. Jan. 26, 2021).
On February 17, 2021, Respondents filed a response to the present habeas petition, arguing that the petition should be dismissed as moot because Petitioner has completed his sentence of probation. Doc. 14. Petitioner submitted no further briefing.
The habeas petition is timely, as it was filed during the pendency of Petitioner's timely PCRA petition.
A matter becomes moot when “it no longer present[s] a case or controversy under Article III, § 2, of the Constitution.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a ‘personal stake in the outcome' of the lawsuit.” Id. (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990)). Here, Petitioner's sentence of four years of probation concluded on March 21, 2020. Pa. Super. PCRA, 2020 WL 5362170, at *3 (“That sentence expired on March 21, 2020, and . . . [Petitioner] has served the entirety of his sentence.”). The issue is whether the completion of Petitioner's probationary sentence renders his habeas petition -- which challenges the conviction rather than some aspect of the completed sentence -- moot.
Because Petitioner's sentence of probation had not yet concluded at the time he commenced the present habeas action, Petitioner met the in-custody requirement for purposes of habeas jurisdiction. See United States ex rel Wojtycha v. Hopkins, 517 F.2d 420, 423 n.6 (3d Cir. 1975) (“‘in custody' jurisdictional requirement is determined as of the date the petition is filed in the district court”); Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (“It is . . . clear that being on probation meets the ‘in custody' requirement for purposes of the habeas statute.”) (citations omitted).
After a petitioner's release from custody, the court generally considers the habeas petition moot unless the petitioner “can demonstrate he will suffer some collateral consequences if his conviction is allowed to stand.” DeFoy v. McCullough, 393 F.3d 439, 441-42, 442 n.3 (3d Cir. 2005); see also Abreu v. Super't Smithfield SCI, 971 F.3d 403, 406-07 (3d Cir. 2020) (“Where a petition for a writ of habeas corpus is filed and subsequently the petitioner is released from custody, habeas corpus jurisdiction may be sustained where serious collateral consequences flow from the conviction.”) (quoting Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001)). However, courts generally presume that such collateral consequences exist where a petitioner challenges a criminal conviction rather than some aspect of the sentence. U.S. v. Kissinger, 309 F.3d 179, 181 (3d Cir. 2002) (citing Sibron v. N.Y., 393 U.S. 40 (1968)); see also Spencer v. Kemna, 523 U.S. 1, 8 (1998) (“In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences.”); U.S. v. Jackson, 523 F.3d 234, 241 (3d Cir. 2008) (“A defendant enjoys a presumption of collateral consequences when he challenges his criminal conviction or both his criminal conviction and his sentence while he is serving a term of parole, probation, or supervised release. Accordingly, even though his imprisonment is completed, the defendant need not show that collateral consequences exist because of this presumption.”). Where collateral consequences are not presumed, it is the petitioner's burden to demonstrate that collateral consequences exist to avoid having a case dismissed as moot. Kissinger, 309 F.3d at 181.
The question whether collateral consequences should be presumed here is complicated by the fact that Petitioner's convictions are defined as misdemeanors under Pennsylvania law. See supra n.3. “Courts have reached different conclusions regarding whether collateral consequences are presumed with respect to misdemeanor convictions.” Mongeluzzo v. Henicks, Civil No. 12-544, 2014 WL 5685551, at *4 (W.D. Pa. Nov. 4, 2014) (collecting cases). The Third Circuit has not held that collateral consequences should be presumed in misdemeanor convictions, and among those courts that have recognized such a presumption, most “seem to make such an inquiry on a case-by-case basis by examining the underlying misdemeanor conviction(s) that the petitioner challenges.” Gruber v. Ct. of Comm. Pleas of Lebanon Co., Civil No. 17-1459, 2019 WL 6339897, at *3 (M.D. Pa. Sept. 10, 2019) (Saporito, M.J.) (quoting Mongeluzzo, 2014 WL 5685551, at *4), Report and Recommendation approved and adopted, 2019 WL 6327874 (M.D. Pa. Nov. 26, 2019) (Kane. J.); see also Myrick v. DeMarco, Civil No. 062418, 2010 WL 652980, at *2 (E.D.N.Y. Feb. 19, 2010) (“[W]hether misdemeanors impose collateral consequences, and thereby enable released offenders to maintain habeas petitions, is a case-by-case inquiry. Specifically, the Court must examine whether a state or professional body will permanently penalize the misdemeanant, such as by precluding him from engaging in certain professions.”) (citing Nakell v. Att'y Gen. of N.C., 15 F.3d 319, 323 (4th Cir. 1994)). At least one case in this circuit has declined to presume collateral consequences from a misdemeanor conviction. See Kopanski v. Pa., Civil No. 06-0217, 2008 WL 4571868, at *3 (M.D. Pa. Oct. 10, 2008) (habeas petition challenging conviction became moot when probationary sentence expired as petitioner did not show any collateral consequences in the case of a third-degree misdemeanor under Pennsylvania law).
The cited cases discussing the presumption of collateral consequences in the context of misdemeanor convictions discuss only state-law misdemeanor labels, and not whether the conviction would qualify as a felony for purposes of federal law. Compare 18 U.S.C. § 3581(b)(6)-(8) (maximum authorized prison terms for misdemeanors are not more than one year (Class A), not more than six months (Class B) and not more than thirty days (Class C)) with 18 Pa. C.S.A. § 1104(1)-(3) (maximum authorized prison terms for misdemeanors are five years (first degree), two years (second degree) and one year (third degree)). Given the absence of any indication of possible collateral consequences in Petitioner's case, I see no need to address this distinction.
Here, Petitioner has not alleged any collateral consequences that flow from his convictions. Petitioner recognized that his sentence would soon expire when he filed his habeas petition, Doc. 2 at 15, but he did not allege any continuing injury following the end of his sentence of probation. Nor did he file any brief responding to Respondents' mootness argument. For example, there is no suggestion that the sentence of four years of probation delayed the start of any other sentence, see DeFoy, 393 F.3d at 442 (challenge to armed robbery conviction not moot where petitioner had to serve remainder of that sentence before serving a sex offense sentence because “[t]he effect of any error as to the former was to delay the start of the latter”), nor that Petitioner faced deportation as a consequence of the convictions. See Steele, 236 F.3d at 134 n.4 (“Erroneous conviction . . . will have several continuing and serious legal consequences for [Steele], including serving as a permanent bar preventing his return to the United States to visit his family.”). Similarly, Petitioner has not demonstrated that the challenged convictions will cause him any other continuing harm. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 23738 (1968) (habeas petition not moot where collateral consequences of the petitioner's conviction included inability to vote, engage in certain businesses, hold public office, and serve as a juror).
Because there is no continuing injury that the court could address by granting habeas relief, I conclude that the petition is moot. If Petitioner were to prevail in challenging his convictions in this case, he faces no collateral consequences beyond those already resulting from his other convictions, and therefore a favorable ruling here cannot provide him any meaningful redress. See Abreu, 971 F.3d at 407-09 (petitioner deported and barred from reentry due to challenged state conviction cannot show “an actual injury . . . likely to be redressed by a favorable decision” where the petitioner is also barred from reentry based on a different conviction that separately renders him inadmissible) (quoting Lewis, 494 U.S. at 477); Malloy v. Purvis, 681 F.2d 736, 739-40 (11th Cir. 1982) (habeas petition moot where the petitioner's civil liberties were previously forfeited due to other convictions); Gruber, 2019 WL 6339897, at *3 (“[w]e need not decide . . . whether collateral consequences should or must be presumed from this petitioner's misdemeanor convictions” because the petitioner “faces the same - if not greater - collateral consequences as a result of her other felony and misdemeanor convictions”).
Petitioner was convicted of third-degree felony stalking in 2007 and sentenced to two -to- four years' incarceration followed by three years of probation. Commonwealth v. McLaughlin, CP-51-CR-0303571-2006, Docket Sheet (Phila. C.C.P). That felony conviction is the subject of a separate habeas petition which the district court has denied. See McLaughlin v. Pa. Bd. of Prob. and Parole, Civil No. 16-3724, Order (E.D. Pa. Sept. 17, 2021) (Quinones Alejandro, J.), appeal pending at Case No. 21-2775 (3d Cir.). Petitioner also pled guilty to three misdemeanor counts of stalking for incidents that occurred in 1997 and early 1998, see Commonwealth v. McLaughlin, CP-51-CR-1004861-1997, CP-51-CR-0201141-1998 & CP-51-CR-0404401-1998 (Phila. C.C.P.), and to misdemeanor contempt of court arising from a violation of a protection from abuse order in July 1997. Commonwealth v. McLaughlin, CP-51-CR-1004821-1997 (Phila. C.C.P.).
In sum, there is no remedy that this court can provide as to the convictions which are challenged in the present habeas petition. The Superior Court declined to renew the claim he raises here because completion of his sentence rendered him ineligible for PCRA relief under Pennsylvania law, and the same result applies here because a favorable ruling cannot provide him any meaningful redress. Therefore, Petitioner's habeas petition should be dismissed as moot.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 28th day of February 2022, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED AS MOOT. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Respondents' answer, and after review of the Report and Recommendation of United States Magistrate Judge Elizabeth T. Hey, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2254 is DISMISSED AS MOOT.
3. There is no basis for the issuance of a certificate of appealability.