ROGERS v. MAHALLY et al

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE CAROL SANDRA MOORE WELLS ON 6/8/16. 6/10/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ERIC ROGERS

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v.
LAWRENCE MAHALLY, et al.

CIVIL ACTION

NO. 14-6498

MEMORANDUM
CAROL SANDRA MOORE WELLS
UNITED STATES MAGISTRATE JUDGE

June 9, 2016

Presently before the court is a Petition for a Writ of Habeas Corpus filed by Eric Rogers
(“Petitioner”) pursuant to 28 U.S.C. § 2254. Petitioner, who is currently serving a life term of
incarceration at the State Correctional Institution-Dallas, seeks habeas relief based on a claim
that his due process rights were violated. 1 The Honorable L. Felipe Restrepo referred this matter
to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. §
636(b)(1)(B). 2 Before addressing the merits of Petitioner’s claim, it is necessary to decide
whether this court has jurisdiction over it, a question the parties have ignored. Hence, they will
be ordered to address this court’s jurisdiction.
I.

PROCEDURAL HISTORY 3

On October 28, 1991, Petitioner pled guilty to one count of possession with intent to
distribute (“PWID”), one count of criminal conspiracy and one count of violating the PACOA.
1

On October 28, 1991, Petitioner pled guilty to, inter alia, one count of violating the Pennsylvania Corrupt
Organization Act (“PACOA”), 18 Pa. Cons. Stat. Ann. §§ 911, et seq. See Petition at 4. In 1996, the Pennsylvania
Supreme Court held that a PACOA conviction was not permissible where the enterprise in question was a wholly
criminal concern, because the Pennsylvania legislature enacted the PACOA in 1973 to protect Pennsylvania’s
legitimate businesses from being infiltrated by organized crime. See Kendrick v. Dist. Att’y of Phila. Cnty., 916
A.2d 529, 533-34 (Pa. 2007) (citing Commonwealth v. Besch, 674 A.2d 655, 659 (Pa. 1996)). The Commonwealth
agrees that the enterprise involved in Petitioner’s case, a drug ring, was solely criminal, therefore, his PACOA
conviction should be vacated. See Response at 1-3.
2
After Judge Restrepo was elevated to the Third Circuit, this case was reassigned to the Honorable Mitchell S.
Goldberg.
3
This factual and procedural history was gleaned from Petitioner’s Habeas Corpus Petition, inclusive of all exhibits
thereto, the Commonwealth’s Response, inclusive of all exhibits thereto, Petitioner’s Answer to the Response,
inclusive of all exhibits thereto, and the state court record.

Commonwealth v. Rogers, No. 898 EDA 2013, slip op. at 1 (Pa. Super. Ct. April 4, 2014) (“2014
Super. Ct. Op.”). On December 3, 1991, he was sentenced to one to two years’ incarceration for
the PWID charge, five to ten years for the conspiracy charge and ten to twenty years on the
PACOA count, with the sentences to run concurrently. Id.
Petitioner did not pursue a direct appeal. 2014 Super. Ct. Op. at 1. Instead, he waited
until September 18, 2009 to seek relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. Ann. §§ 9541 et seq. 2014 Super. Ct. Op. at 2. The PCRA petition was dismissed as
time-barred, id., and, on August 26, 2011, the Pennsylvania Superior Court affirmed that
decision. Id. The Pennsylvania Supreme Court denied allowance of appeal (“allocatur”) on
February 24, 2012. Id.
Next, Petitioner filed a second PCRA petition on March 15, 2012, but it was also
dismissed as untimely. 2014 Super. Ct. Op. at 2. On April 4, 2014, the Superior Court affirmed
that decision as well.

Id. at 2-6.

The Pennsylvania Supreme Court denied allocatur on

September 22, 2014. Commonwealth v. Rogers, No. 256 EAL 2014 (Pa. Sept. 22, 2014).
On November 6, 2014, 4 Petitioner filed the instant habeas corpus petition, claiming that
his PACOA conviction violated his due process and eighth amendment rights. Petition (“Pet.”)
at 8. The Commonwealth concedes that Petitioner’s PACOA conviction should be vacated; it
requests that this court conditionally grant the writ and afford the state court time to resentence
Petitioner on the remaining charges. Resp. at 1-4. Petitioner has replied and maintains that this
court should vacate his PACOA conviction as well as a separate April 1991 first degree murder
conviction on the ground that the murder was a predicate act for the PACOA offense.
4

The Clerk of Court docketed this habeas corpus petition on November 10, 2014. However, Petitioner is a pro
se inmate, hence, his petition is deemed filed on the date he gave it to prison officials for mailing. See Burns v.
Morton, 134 F.3d 109, 113 (3d Cir. 1998). Under penalty of perjury, Petitioner stated that he placed his habeas
petition in the prison mailing system on November 6, 2014. Pet. at 19. Hence, this court will deem November 6,
2014 the filing date pursuant to Burns.

2

Petitioner’s Answer to Response (“Reply”) at 2-8. As explained below, this court is not prepared
to address these merits questions, as it may lack jurisdiction over the habeas petition.
II.

DISCUSSION

A federal court has jurisdiction to entertain a habeas petition only if the petitioner is “in
custody” in violation of the federal constitution or federal law. Levya v. Williams, 504 F.3d 357,
362 (3d Cir. 2007) (citing DeFoy v. McCullough, 393 F.3d 439, 441 (3d Cir. 2005)). Whether
the petitioner is “in custody” is evaluated at the time the habeas petition is filed. Levya, 504 F.3d
at 363. Once the petitioner has fully served a state-imposed sentence, he can no longer satisfy
the “in custody” jurisdictional requirement. Lackawanna Cnty. Dist. Attn’y v. Coss, 532 U.S.
394, 401 (2001).
The record before the court does not conclusively establish whether Petitioner satisfied
the “in custody” jurisdictional requirement, because Petitioner’s PACOA sentence may have
expired before he filed his habeas petition. Petitioner’s PACOA sentence of ten to twenty years
was imposed on December 3, 1991.

If, as appears from the record before the court, he

commenced serving the sentence immediately, it expired on December 3, 2011. Since Petitioner
filed the instant habeas petition on November 6, 2014, it seems that he did not satisfy the “in
custody” requirement; if so, this court lacks jurisdiction over his petition. See Coss, 532 U.S. at
401.

Further, the Commonwealth suggests that Petitioner’s sentences for his PWID and

conspiracy charges have already expired, see Resp. at 3 n.2, but fails to explain how it could be
that the PACOA conviction would not have also expired, since it was concurrent to the other
sentences. On the other hand, Petitioner asserts that he will serve a life sentence once his
PACOA sentence expires, implying that he was serving the PACOA sentence when he filed the
habeas petition. See Pet. at 17. The parties cannot consent to jurisdiction where it is absent and

3

this court has the duty to determine whether it has jurisdiction, even if the parties fail to contest
it, see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95(1998); therefore, they
will be ordered to address whether Petitioner was “in custody” on his PACOA conviction when
he filed the instant habeas petition.
An implementing order follows.

4