Opinion
3:21-cv-163-KRG-KAP
11-08-2021
WADE PLAIR, Petitioner v. SUPREME COURT OF PENNSYLVANIA, et al., Respondents
REPORT AND RECOMMENDATION RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
On or about September 15, 2021, petitioner submitted what he styled as a writ of mandamus [sic] directed to the Honorable Daniel Milliron, a judge of the Blair County Court of Common Pleas, and to each of the three levels of the Pennsylvania judiciary. It has been referred to me. Because the petition seeks dismissal of criminal charges against petitioner, it is a habeas corpus petition. Regarding it as a habeas petition, I recommend that pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the petition be dismissed and that no certificate of appealability be issued. Petitioner's ifp status should be revoked on appeal because no good faith argument could be made that would support an appeal.
Report
As the attached seventeen-page public docket sheet indicates, petitioner is awaiting trial on criminal charges of disorderly conduct, defiant trespass, and harassment in the Blair County Court of Common Pleas, where he has chosen to proceed pro se. He filed a motion in the trial court seeking dismissal of the charges against him as barred by the Double Jeopardy Clause, a motion Judge Milliron heard and denied in January 2021. Petitioner took an interlocutory appeal that the Pennsylvania Superior Court quashed, and the Pennsylvania Supreme Court refused to review that action. Petitioner then filed this petition, asserting that the criminal charges against him are barred by the Double Jeopardy Clause.
Due to the special nature of the double jeopardy right and the fact that the right cannot be fully vindicated on appeal following final judgment, a petitioner who has exhausted his state court remedies can bring a pretrial petition for a writ of habeas corpus in federal court. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 302-03 (1984). 1
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, allows a federal court to issue a writ of habeas corpus to a person challenging a state court criminal conviction and sentence if the petitioner establishes that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.§ 2254(a); see Howell v. Superintendent Rockview SCI, 939 F.3d 260, 264 (3d Cir.2019). AEDPA does not permit a federal court to review either trial or appellate proceedings de novo.
Where, as here, a state court adjudicates claims on the merits, to obtain relief a petitioner must show that the ruling:
(1) resulted in a decision that 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) resulted in a decision that 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). See also Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An unreasonable application of federal law focuses on whether the state court unreasonably applied Supreme Court precedent, not whether it was “merely wrong.” White v. Woodall, 572 U.S. 415, 419 (2014). An unreasonable determination of the facts is one where the petitioner proves by clear and convincing evidence, see 28 U.S.C.§ 2254(e)(1), that the conclusion drawn from the evidence by the state court is so improbable that it “blinks reality.” See Miller-El v. Dretke, 545 U.S. 231, 266 (2005). Where reasonable minds might disagree, federal habeas review cannot reject the state court's determination. See Rice v. Collins, 546 U.S. 333, 341-42 (2006).
These are deliberately demanding standards. As the Supreme Court has observed, habeas corpus is a guard against extreme malfunctions in the state criminal justice system, not a substitute for ordinary error correction through appeal, and requires a petitioner to show a malfunction in his prosecution so egregious “that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011). Or, as the Court of Appeals has put it, at every step of habeas review AEDPA “gives state courts the benefit of th[e] doubt.” Brown v. Wenerowicz, 663 F.3d 619, 634 (3d Cir. 2011).
Here, there is no benefit of the doubt to discuss because there is no doubt: Judge Milliron made a decision that correctly applies Supreme Court precedent. Petitioner is 2 awaiting trial on charges that arose from events that allegedly took place on April 11, 2019. Petitioner says that the events that gave rise to the charges were also the subject of a November 20, 2019 civil agreement (attached as an exhibit to the petition) that resolved an eviction proceeding against him by the Altoona Housing Authority. The AHA agreed to drop its eviction proceeding and petitioner agreed to discontinue litigation pending in the state courts. Judge Milliron approved the agreement.
The Double Jeopardy Clause provides that no “person be subject for the same offence to be twice put in jeopardy of life or limb.” Constitution, Amendment 5. That clause prohibits the Government from punishing twice, or attempting a second time to punish criminally for the same offense. United States v. Ursery, 518 U.S. 267, 273 (1996). The key words here are “government” and “criminally.” The Altoona Housing Authority is not the government and does not have the power to prosecute crimes. No agreement with it can give petitioner a double jeopardy claim.
Second, an eviction proceeding is not a criminal proceeding and eviction is not so punitive either in purpose or effect that it would transform what is clearly intended as a civil remedy into a criminal penalty. See Hudson v. United States, 522 U.S. 93, 99-100 (1997). It is only a criminal punishment (or here, an agreement to forego criminal punishment) that would bar a subsequent criminal prosecution for an offence. The Supreme Court, in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, (1963), listed factors that the Court looked to in Hudson: (1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”; (4) “whether its operation will promote the traditional aims of punishment-retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” The Hudson court noted that “only the clearest proof ” will suffice to transform what has been denominated a civil remedy into a criminal penalty. Id.
Petitioner does not come close to satisfying any of the Hudson factors, and to the contrary his proposed use of the agreement with AHA, though it seems appropriate to him in a relatively minor prosecution, would wreak havoc in serious criminal matters. Legal principles announced in one case are precedent in the next. Consider a homicide committed in a unit in an AHA building or other rental property, after which the accused suspect quickly “agreed” in a written agreement signed by a friendly landlord to be evicted, or (if not a tenant) “agreed” simply to stay off the premises. Under petitioner's theory, regardless of the lack of participation by (or even notice to) the District Attorney he thereby could never be prosecuted for murder. That is absurd. The petition should be summarily denied. 3
Because petitioner does not make a “substantial showing of the denial of a constitutional right, ” 28 U.S.C.§ 2253(c)(3), no certificate of appealability should be issued.
Pursuant to 28 U.S.C.§ 636(b)(1), the petitioner is given notice that he has fourteen days to file written objections to this Report and Recommendation. Petitioner is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).
The Clerk shall add the District Attorney of Blair County to the docket as counsel for the Blair County Court of Common Pleas for notice purposes only. The District Attorney has no duty to respond. 4