SERFASS v. MOONEY et al

Filing 12

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE APPLICATION FOR HABEAS CORPUS IS DENIED; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; THE CLERK OF COURT SHALL MARK THIS MATTER CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE LEGROME D. DAVIS ON 6/23/14. 6/23/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THOMAS B. SERFASS,
Petitioner,
v.
VINCENT MOONEY,
SUPERINTENDENT, SCI COAL
TOWNSHIP, et al.,
Respondents.

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CIVIL ACTION

NO. 13-6157

ORDER
AND NOW, this 20th day of June 2014, upon consideration of the Report and
Recommendation of United States Magistrate Judge Linda K. Caracappa (Doc. No. 10) and
Petitioner Thomas B. Serfass’s Objections thereto (Doc. No. 11), and upon independent review
of Serfass’s Application for Habeas Corpus Under 28 U.S.C. § 2254 (Doc. No. 1), it is hereby
ORDERED as follows:
1. The Report and Recommendation (Doc. No. 10) is APPROVED and ADOPTED.
This Court must make “a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C). Serfass objects to two aspects of the Report and
Recommendation.
First, he claims that he was sentenced under an
unconstitutionally vague statutory provision. (See Serfass’s Objs. 2–6, Doc. No.
11.) Second, he argues that his sentence violates the Eighth Amendment’s
prohibition of cruel and unusual punishments. (Id. at 7–8.)
The Superior Court of Pennsylvania has considered and rejected both of these
claims. See Commonwealth v. Serfass, No. 2842 EDA 2011, slip op. at 5–8 (Pa.
Super. Ct. Aug. 17, 2012) (available at Doc. No. 9-22). Habeas relief is therefore
available to Serfass only if the Superior Court’s analysis “either ‘resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court,’ or was founded on
an ‘unreasonable determination of the facts.’” Collins v. Sec’y of Pennsylvania
Dep’t of Corr., 742 F.3d 528, 543 (3d Cir. 2014) (quoting 28 U.S.C. § 2254(d)).
A state-court decision involves an unreasonable application of Supreme Court
precedent if the state court “identifies the correct governing legal rule from [the

Supreme] Court’s cases but unreasonably applies it to the facts of the particular
state prisoner’s case,” or “unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.” Williams
v. Taylor, 529 U.S. 362, 407 (2000).
Serfass’s first claim is that the following sentencing provision is void for
vagueness:
A person under 60 years of age convicted of the following offenses
when the victim is over 60 years of age and not a police officer
shall be sentenced to a mandatory term of imprisonment as
follows: . . . 18 Pa.C.S. § 3922 (relating to theft by deception)--not
less than 12 months, but the imposition of the minimum sentence
shall be discretionary with the court where the court finds
justifiable cause and that finding is written in the opinion.
42 Pa. Cons. Stat. § 9717(a) (emphasis added). The Superior Court rejected this
argument because “[t]he fact that the dissent [in Commonwealth v. Littlehales,
915 A.2d 662 (Pa. Super. Ct. 2007)] read [§ 9717(a)] differently does not prove a
‘void-for-vagueness’ claim.” 1 Serfass, No. 2842 EDA 2011, slip op. at 5.
Magistrate Judge Caracappa recommends that we deny Serfass’s claim because
the Superior Court’s “finding is not contrary to, nor does it involve an
unreasonable application of, the federal [void-for-vagueness] standard.” (Rep. &
Recommendation 9, Doc. No. 10.)
We agree with Magistrate Judge Caracappa that Serfass’s void-for-vagueness
claim is meritless because he had notice that his conduct could subject him to
mandatory one-year sentences. See Martinez v. Stridiron, 538 F. App’x 184, 190
(3d Cir. 2013) (“[A] sentencing provision is unconstitutionally vague if it fails to
give notice that the punishment imposed is one of the possible penalties.” (citing
Gov’t of Virgin Islands v. D.W., 3 F.3d 697, 699 (3d Cir. 1993)); see also United
States v. Batchelder, 442 U.S. 114, 123 (1979) (“[V]ague sentencing provisions
may pose constitutional questions if they do not state with sufficient clarity the
consequences of violating a given criminal statute.”). The Superior Court held in
2007 that § 9717(a) imposes a one-year mandatory minimum where the
sentencing court determines that “‘justifiable cause’ exists to impose the
sentence.” Littlehales, 915 A.2d at 665 (emphasis omitted). This holding put

1

The majority and dissent in Littlehales disagreed over whether “the trial court must
justify in writing the imposition of the mandatory minimum sentence, or whether the trial court
must justify the imposition of less than the mandatory minimum sentence.” 915 A.2d at 668
(Joyce, J., concurring in part and dissenting in part). The majority adopted the first of these two
interpretations. Id. at 665.
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Serfass on notice that he would be subject to a one-year mandatory minimum if
(1) he committed theft by deception against a person older than 60 who was not a
police officer, and (2) the sentencing court found justifiable cause to impose the
mandatory one-year sentence. 2 Thus, while a reasonable person in Serfass’s
position might not have known with certainty whether the one-year mandatory
minimum would be applied to him, he would know that his “‘conduct put[] [him]
at risk of punishment under the statute.’” United States v. Moyer, 674 F.3d 192,
211 (3d Cir. 2012) (quoting San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d
Cir. 1992)). The Superior Court of Pennsylvania did not unreasonably apply
Supreme Court precedent when resolving Serfass’s void-for-vagueness claim.
Serfass’s second claim is an Eighth-Amendment challenge to his sentence. He
argues that his incarceration lacks penological justification because it prevents
him from earning the money he needs to pay his victims back. (See Serfass’s
Objs. 7–8.) The Superior Court rejected this claim because Serfass failed to
“establish[] that his sentence of ten to twenty years for his twenty-six crimes is
grossly disproportionate.” Serfass, No. 2842 EDA 2011, slip op. at 7. And
Magistrate Judge Caracappa recommends that we deny the claim because the
Superior Court’s decision was not contrary to, or an unreasonable application of,
federal law. (See Rep. & Recommendation 11.)
We find that Serfass “fails to show a gross imbalance between the crime and the
sentence.” United States v. MacEwan, 445 F.3d 237, 248 (3d Cir. 2006). “[T]he
Eighth Amendment does not demand strict proportionality between the crime and
the sentence; rather, it forbids only those sentences that are ‘grossly
disproportionate’ to the crime.” Id. (quoting Ewing v. California, 538 U.S. 11, 23
(2003)). Serfass “received over $676,000.00 from twenty-five individuals, all
over the age of 60,” by convincing his victims “to purchase private annuities, life
insurance policies, or asset protection policies,” and then “used the money for
personal purposes.” Commonwealth v. Serfass, No. 1136 EDA 2010, slip op. at

2

We do not reach Serfass’s claim that his sentence was imposed in violation of the
Supreme Court’s holding in Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013) (holding that
“any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the
jury”). (See Serfass’s Objs. 4–6.) Serfass’s failure to exhaust this claim in state court prevents
us from considering it. See Heleva v. Brooks, 581 F.3d 187, 189 (3d Cir. 2009) (“One of the
threshold requirements for a § 2254 petition is that, subject to certain exceptions, the petitioner
must have first exhausted in state court all of the claims he wishes to present to the district
court.”). Serfass also waived this argument by failing to present it to Magistrate Judge
Caracappa. See Local R. Civ. P. 72.1.IV.(c) (“[U]nless the interest of justice requires it, new
issues and evidence shall not be raised after the filing of the Magistrate Judge’s Report and
Recommendation if they could have been presented to the magistrate judge.”). We note,
however, that “Alleyne cannot be applied retroactively to cases on collateral review.” United
States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014).
3

1–2 (Pa. Super. Ct. Dec. 14, 2010) (available at Doc. No. 9-14). The state court
sentenced Serfass to between 10 and 20 years of imprisonment after discussing,
among other things, “the need to protect the community from [Serfass’s]
predatory schemes, [Serfass’s] specific targeting of elderly individuals, and
[Serfass’s] lack of a realistic plan to compensate the victims.” Id. at 8. The
Superior Court correctly determined that this sentence is not grossly
disproportionate to Serfass’s crimes.
2. Serfass’s Application for Habeas Corpus Under 28 U.S.C. § 2254 (Doc. No. 1) is
DENIED.
3. A certificate of appealability SHALL NOT issue.
4. The Clerk of Court shall mark this matter CLOSED for statistical purposes.

BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.

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