Opinion
Civil Action No. 04-025.
May 28, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Harold Thompson. Petitioner is currently incarcerated at the United States Penitentiary in Beaumont, Texas. For the reasons which follow, the habeas petition should be denied and dismissed.
I. PROCEDURAL HISTORY
Unless otherwise noted, the following facts were compiled from the habeas petition, the Response thereto of the District Attorney of Philadelphia, and the exhibits submitted by the parties.
The habeas petition alleges that in 1994, following a jury trial in the Court of Common Pleas of Philadelphia, petitioner was convicted of robbery, receiving stolen property, and violating the Uniform Firearms Act. See Hab. Pet. ¶¶ 1-6; see also Resp. to Hab. Pet. ¶ 2 (acknowledging that on March 10, 1994, petitioner was convicted of robbery). He was sentenced to four to ten (4-10) years in prison. See Hab. Pet. ¶ 3; Resp. to Hab. Pet. ¶ 2. Petitioner did not file a direct appeal from the judgment of conviction. See Hab. Pet. ¶ 8; Resp. to Hab. Pet. ¶ 3.
On November 26, 2003, petitioner filed a document in the Philadelphia Court of Common Pleas styled "Application for Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Pursuant to Writ of Error Coram Nobis Under Code of Criminal Procedure of the Commonwealth of Pennsylvania" (hereinafter referred to as "coram nobis petition") (a copy of which is attached to the Response to the habeas petition as Ex. 1). In his coram nobis petition, petitioner claims ineffective assistance of counsel on direct appeal and the denial of his direct appeal rights. The parties agree that this state petition is currently pending in the state court. See Hab. Pet. ¶¶ 11(a)(5), 11(d); Resp. to Hab. Pet. ¶ 4.
Respondent refers to this document as a pro se petition under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-46, see Resp. to Hab. Pet. ¶ 3, and the document is marked received by the "PCRA Unit" on Nov. 26, 2003.
On January 5, 2004, petitioner thereafter filed a petition for writ of habeas corpus in this Court (Doc. No. 1). On January 12, 2004, the Honorable James Knoll Gardner ordered the Clerk of this Court to furnish petitioner with the current form for filing a petition under § 2254, and the Court further ordered that petitioner complete this form as directed by Local Rule of Civil Procedure 9.3 and return it to the Clerk of Court within thirty days to avoid dismissal of this civil action. On February 2, 2004, petitioner filed the present petition (Doc. No. 3) (hereinafter referred to as "habeas petition") on the proper form pursuant to Local Rule 9.3 and the Court's January 12, 2004 Order.
Local Rule of Civil Procedure 9.3 reads in pertinent part: "All petitions for writ of habeas corpus . . . shall be filed on forms provided by the Court and shall contain the information called for by such forms. The required information shall be set concisely and legibly. Ordinarily, the Court will consider only those matters which are set forth on the forms provided by the Court. Any attempt to circumvent this requirement by purporting to incorporate by reference other documents which do not comply with this Rule may result in dismissal of the petition." Local R. Civ. P. 9.3.
The habeas petition alleges the following ground for relief: that the Pennsylvania Board of Probation and Parole ("Board" or "Parole Board") violated the Ex Post Facto Clause of the Constitution "by extending the sentence beyond the maximum that the court assigned." See Hab. Pet. at 9. In her Response to the habeas petition, the District Attorney urges the Court to dismiss the petition for lack of jurisdiction because at the time he filed it, he failed to meet the "in custody" requirement of § 2254, and in any event, his petition is time-barred. See Resp. to Hab. Pet. at 2-5.
II. DISCUSSION
Title 28 U.S.C. § 2254 confers jurisdiction on United States District Courts to entertain petitions for habeas corpus relief only from petitioners who are "in custody pursuant to the judgment of a state court." See 28 U.S.C. § 2254(a); see also Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003). The Supreme Court has interpreted § 2254 as requiring that, at the time his petition is filed, the petitioner must be "in custody" under the conviction or sentence he seeks to attack. See Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam) (citing Carafas v. LaVallee, 391 U.S. 234 (1968)); Young v. Vaughn, 83 F.3d 72, 73 (3d Cir. 1996), cert. denied, Abraham v. Young, 519 U.S. 944 (1996).A habeas petitioner does not remain "`in custody' under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted." Maleng, 490 U.S. at 492;Unger v. Moore, 258 F.3d 1260, 1263 (11th Cir. 2001) ("As such, federal courts normally lack jurisdiction over petitions which challenge a conviction with a completely expired sentence.") .
In the present case, respondent represents: "The Pennsylvania Department of Corrections has advised undersigned counsel that petitioner was paroled on his Pennsylvania sentence on July 16, 2003 and on July 24, 2003 his maximum sentence expired." See Resp. to Hab. Pet. ¶ 5 (emphasis added). Indeed, petitioner acknowledges in his petition that "the sentence [imposed by the Pennsylvania court] has expired," see Hab. Pet. ¶ 13 (emphasis added), and that petitioner is now incarcerated at the United States Penitentiary in Beaumont, Texas, see id. at 1. Thus, petitioner is now apparently in the custody of the Warden at the federal penitentiary in Texas. See id.
According to respondent, "[petitioner] is currently incarcerated on his federal sentence in Texas." See Resp. to Hab. Pet. at 2 n. 1.
Moreover, in explaining why he filed his coram nobis petition in state court (and not a "PCRA Petition"), petitioner explained: "A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for post-conviction relief."See Coram Nobis Pet. filed 11/26/03, at 5 (emphasis added);cf. Obado, 328 F.3d at 718 (acknowledging that "coram nobis is not available when a petitioner is in custody"). Thus, petitioner appears to acknowledge in his state petition and his present habeas petition that his Pennsylvania "sentence has expired," see, e.g., Hab. Pet. ¶ 13, and he is "no longer in custody" pursuant to his Pennsylvania conviction, see Coram Nobis Pet. filed 11/26/03, at 5; see also Hab. Pet. at 1. In addition, the habeas petition does not allege that the expired Pennsylvania sentence was used to enhance any subsequent sentence. Accordingly, the present petition should be denied and dismissed. See, e.g., Birdsell, 834 F.2d at 922 (affirming dismissal of federal prisoner's § 2254 petition for lack of jurisdiction where prisoner's state sentence had expired); Buhl, 1998 WL 70628, at *5 (dismissing § 2254 petition "for lack of jurisdiction" where federal prisoner challenged his expired state conviction on the basis that it was used to enhance his federal sentence).
In Young v. Vaughn, the Third Circuit held that when a district court is faced with a habeas petition challenging an expired state conviction, the court should construe the petition as challenging the petitioner's current sentence if the expired conviction was used to enhance the current sentence. Buhl v. Hendrick, 1998 WL 70628, at *4 (E.D. Pa. Feb. 19, 1998) (citingYoung, 83 F.3d at 73, 76-79). Here, petitioner does not even allege, let alone demonstrate, that his admittedly expired Pennsylvania sentence was used to enhance any subsequent sentence being served at the federal penitentiary in Texas. See, e.g., Ames v. Brewington-Carr, 2000 WL 748148, at *2 n. 1 (D. Del. May 31, 2000) ("Given the absence of any indication in the record at bar that petitioner's current sentence was enhanced by his prior conviction or that his current incarceration is a result of his prior conviction (e.g., a parole violation) . . ., the court is unwilling to construe petitioner's application as challenging his current conviction."). Moreover, even if the present petition did make such a claim, a challenge to any federal sentence "should be brought as a motion pursuant to 28 U.S.C. § 2255 in the federal district court which sentenced petitioner." See Birdsell v. Alabama, 834 F.2d 920, 922 (11th Cir. 1987) (in affirming dismissal of § 2254 petition for lack of jurisdiction, Court held that petitioner's claim that his current federal sentence had been improperly enhanced on the basis of an expired state sentence should be brought in § 2255 motion in the federal district where petitioner was sentenced); see also Buhl, 1998 WL 70628, at *4 (where § 2254 petitioner challenged his expired state conviction on the basis that it was used to enhance his current federal sentence, Court held that "such a challenge must take the form of a motion pursuant to 28 U.S.C. § 2255").
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. Under the AEDPA, "a COA may not issue unless `the applicant has made a substantial showing of the denial of a constitutional right.'"Slack v. McDaniel, 529 U.S. 473, 483 (2000) (quoting 28 U.S.C. § 2253(c)); see Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
When a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; see Miller-El, 123 S.Ct. at 1046 (Scalia, J., concurring) (observing that Slack held "that a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); Walker v. Frank, 2003 WL 115951, at *2 (3d Cir. Jan. 14, 2003), cert. denied, 124 S.Ct. 91 (2003); Woods v. Kearney, 215 F. Supp.2d 458, 464 (D. Del. 2002).
"Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack, 529 U.S. at 484; see Woods, 215 F. Supp.2d at 464. Here, for the reasons set forth above, a reasonable jurist could not conclude that the Court would be incorrect in dismissing this § 2254 petition on the ground that petitioner failed to satisfy the "in custody" requirement of § 2254 at the time he filed his petition. Accordingly, the habeas petition should be denied and dismissed, and a COA should not issue.