Opinion
Civil Action 3:22-cv-00500
04-07-2022
GERALD A. SANDUSKY, Petitioner, v. MELISSA HAINSWORTH, Superintendent SCI Laurel Highlands, et al., Respondents.
MANNION, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR., United States Magistrate Judge.
On April 4, 2022, the petitioner, Gerald A. Sandusky, appearing through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) At the time of filing, Sandusky was incarcerated at SCI Laurel Highlands, located in Somerset County, Pennsylvania.
The petition alleges the violation of Sandusky's federal rights in connection with his conviction by a jury on June 22, 2012, in the Court of Common Pleas of Centre County for 45 counts relating to the sexual abuse of young boys. On October 9, 2012, the petitioner was sentenced to serve an aggregate term of 30 to 60 years in prison. Commonwealth v. Sandusky, Docket Nos. CP-14-CR-0002421-2011, CP-14-CR-00022011 (Centre Cty. (Pa.) C.C.P.). His conviction and sentence were affirmed on direct appeal by the Superior Court of Pennsylvania on October 2, 2013. Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. Ct. 2013). Sandusky petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on April 2, 2014. Commonwealth v. Sandusky, Nos. 835 MAL 2013, 836 MAL 2013 (Pa.). He did not petition the Supreme Court of the United States for a writ of certiorari.
The petitioner filed a counseled PCRA petition in the state court of common pleas on April 2, 2015. He subsequently filed an amended PCRA petition in May 2015 and a second amended PCRA petition in March 2016. The state PCRA court held multiple evidentiary hearings over the course of 2016 and 2017. On October 18, 2017, the PCRA court denied Sandusky's petition. Commonwealth v. Sandusky, Docket Nos. CP-14-CR-0002421-2011, CP-14-CR-0002422-2011 (Centre Cty. (Pa.) C.C.P.). The petitioner appealed the denial of his PCRA petition to the Superior Court of Pennsylvania. On February 5, 2019, the Superior Court affirmed the PCRA court's decision in part and vacated it in part, remanding the case to the trial court for resentencing. Commonwealth v. Sandusky, 203 A.3d 1033, 1102-04 (Pa. Super. Ct. 2019). Sandusky petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on July 24, 2019. Commonwealth v. Sandusky, 216 A.3d 1029 (Pa. 2019).
On November 22, 2019, Sandusky was resentenced to serve an aggregate term of 30 to 60 years in prison. Commonwealth v. Sandusky, Docket Nos. CP-14-CR-0002421-2011, CP-14-CR-0002422-2011 (Centre Cty. (Pa.) C.C.P.). He was also ordered to pay restitution as part of the sentence. Id. The petitioner appealed this more recent judgment of sentence to the Superior Court of Pennsylvania. On May 13, 2021, the Superior Court affirmed the petitioner's judgment of sentence in part and vacated it in part, remanding the case for further resentencing. Commonwealth v. Sandusky, 256 A.3d 27, 2021 WL 1924157, at *6 (Pa. Super. Ct. 2021) (unpublished table decision). Sandusky petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on January 5, 2022. Commonwealth v. Sandusky, Nos. 485 MAL 2021, 486 MAL 2021, 2022 WL 40674 (Pa. Jan. 5, 2022) (per curiam). Sandusky's resentencing remains pending before the trial court. See Commonwealth v. Sandusky, Docket Nos. CP-14-CR-0002421-2011, CP-14-CR-0002422-2011 (Centre Cty. (Pa.) C.C.P.).
Section 2254 provides that this Court may “entertain an application for a writ of habeas corpus on 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.” 28 U.S.C. § 2254(a) (emphasis added). Under § 2254, whether the petitioner is “in custody” is a jurisdictional requirement for bringing a federal habeas petition. See Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam). The time for ascertaining whether a petitioner is “in custody” under the conviction or sentence under attack is the time when the petition is filed. See id. at 490-91; Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Moreover, as the Supreme Court has instructed, under § 2254, “[f]inal judgment in a criminal case means sentence. The sentence is the judgment.” Burton v. Stewart, 549 U.S. 147, 156 (2007) (emphasis added).
Although Sandusky was originally sentenced and then, following a successful PCRA petition, resentenced to serve a term of 30 to 60 years in prison for his convictions, his most recent sentence was vacated on direct appeal, and he is currently in custody awaiting resentencing. Because he is not yet in custody pursuant to a state court judgment of sentence, this Court lacks jurisdiction to adjudicate his § 2254 petition. See Reber v. Steele, 570 F.3d 1206, 1209-10 & n.1 (10th Cir. 2009); Mercer v. Stirling, C/A No. 0:14-2607-RBH-PJG, 2015 WL 1291668 (D.S.C. Jan. 20, 2015), report and recommendation adopted by 2015 WL 1280618 (D.S.C. Mar. 20, 2015); Harris v. Allen, 683 F.Supp.2d 1284, 1289-92 (M.D. Ala. 2010); see also Harris, 683 F.Supp.2d at 1290 (“[A petitioner awaiting resentencing] is not in custody pursuant to a judgment, she is in custody pending a judgment, just as she was in the interval between her conviction and initial sentence.”); cf. Maleng, 490 U.S. at 492 (holding that court lacked jurisdiction where petitioner challenged fully expired sentence); Hurlbert v. Commonwealth, Civil Action No. 13-140 Erie, 2013 WL 3724839 (W.D. Pa. July 16, 2013) (dismissing § 2254 petition for lack of jurisdiction where petitioner challenged anticipated, but not yet imposed, sentence); Neyor v. I.N.S., 155 F.Supp.2d 127, 131-33 (D.N.J. 2001) (finding no jurisdiction under § 2254 to consider challenge to expired sentence that formed predicate for current immigration removal custody). In other words, Sandusky's petition is premature and must be dismissed without prejudice.
We note that the petitioner may have filed this petition early as a precaution due to the AEDPA's one-year statute of limitations for § 2254 petitions. But that limitations period does not begin to run “until both his conviction and sentence ‘became final by the conclusion of direct review or the expiration of the time for seeking such review ....'” Burton, 549 U.S. at 156-57 (quoting 28 U.S.C. § 2244(d)(1)(A)) (emphasis in original). As noted above, there is no final judgment yet in the underlying state criminal case because the petitioner has not yet been resentenced. See Id. at 156. As one court has explained:
AEDPA is not a Hobson's choice. A petitioner who wishes to challenge his conviction is not required to do so immediately and forfeit his right to later challenge his sentence. Nor must a petitioner who wishes to preserve his ability to challenge his sentence forfeit his right to challenge his conviction. AEDPA allows a state prisoner to wait until both his conviction and his sentence have become final before filing a petition under § 2254.Scott v. Hubert, 635 F.3d 659, 667 (5th Cir. 2011). To the extent the petitioner may intend to request that we stay and hold these proceedings in abeyance until after a new judgment of sentence becomes final, and then allow him to amend his petition at that time to add any new claims related to his resentencing, holding the petition in abeyance or permitting him to later amend it would not cure the jurisdictional defect because, as we have noted, the time for ascertaining whether a petitioner is “in custody” pursuant to a state court judgment is at the time of the original petition's filing. See Maleng, 490 U.S. at 490-91; Carafas, 391 U.S. at 238; Pugh v. Overmyer, Civil Action No. 3:15-CV-0364, 2017 WL 3701824, at *4 n.2 (M.D. Pa. Aug. 28, 2017). Moreover, there is no potential prejudice to justify a stay, as the applicable limitations period under the AEDPA will not begin to run until Sandusky's resentencing is complete. See Mercer v. Stirling, Civil Action No. 0:14-cv-2607-RBH, 2015 WL 1280618, at *6 (D.S.C. Mar. 20, 2015) (finding no prejudice to dismissal and, thus, denying motion to stay habeas petition). See generally Rose v. Lundy, 455 U.S. 509, 522 (1982) (requiring dismissal of mixed petitions containing both exhausted and unexhausted claims); Rhines v. Weber, 544 U.S. 269, 273-78 (2005) (discussing limited circumstances when stay and abeyance of mixed petitions is appropriate, rather than dismissal).
Based on the foregoing, it is recommended that the petition (Doc. 1) be summarily DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. It is further recommended that the Court decline to issue a certificate of appealability, as the petitioner has failed to demonstrate “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Buck v. Davis, 137 S.Ct. 759, 773-75 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated April 7, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.