Smith v. Commonwealth Of Pennsylvania et al

Filing 15

MEMORANDUM AND ORDER denying motion to reopen 11 , dismissing motion to proceed IFP 13 as MOOT, & dismising motion to order polygraph test 14 as MOOT. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 04/12/11. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES E. SMITH

:
:
Petitioner
:
:
v.
:
:
COMMONWEALTH OF
:
PENNSYLVANIA, WARDEN OF THE :
YORK COUNTY PRISON, and
:
DAUPHIN COUNTY ADULT
:
PROBATION AND PAROLE
:
:
Respondents
:

CIVIL ACTION NO. 1:11-CV-0264
(Judge Conner)

MEMORANDUM
Presently before the court are three motions filed by the petitioner,
Charles E. Smith (“Smith”): (1) a motion to reopen the above-captioned matter
(Doc. 11); (2) a motion to proceed in forma pauperis (Doc. 13); and (3) a motion to
order a polygraph test (Doc. 14). For the reasons that follow, the court will deny the
motion to reopen and dismiss the remaining two motions as moot.
I.

Background
Smith’s petition arises from a purported agreement between himself and

Dauphin County Prosecutor Steven Zawisky (“Zawisky”). Smith asserts that in
exchange for his testimony at the Dauphin County murder trial of Marcel Williams,
Zawisky agreed to dismiss all pending charges against Smith in unrelated matters
and close the criminal docket in a Dauphin County simple assault case in which
Smith pled guilty in February 2010. (Doc. 11-1, at 12-13). Smith contends that on
the day of his testimony Zawisky reneged on his promise, instead telling Smith that

he would close the docket in the simple assault case upon Smith’s satisfaction of the
restitution order in that matter. (Id. at 13). Smith, claiming he had no other option,
testified and was released. (Id. at 14). On January 14, 2011, Smith was arrested for
an incident at his place of employment. As a result, a Dauphin County parole
detainer issued; Smith’s arrest violated his parole in the simple assault matter.
Smith contends that, due to his agreement with Zawisky to close that matter, his
detention was illegal.
Smith filed a petitions for writ of habeas corpus in the York County Court of
Common Pleas (the county in which he was detained at the time) and the Dauphin
County Court of Common Pleas. (Id. at 14-15). Smith simultaneously filed a
petition for writ of habeas corpus and stay of extradition in this court, asserting
violations of his Fifth, Eighth, and Fourteenth Amendment rights. (Doc. 1) He
expressed grave concerns for his physical safety if returned to Dauphin County
Prison where inmates knew he testified against Marcel Williams. (See id.) The
court appointed a federal public defender and the parties reached an agreement
whereby Smith would be detained in either the York or Cumberland County Prison
pending resolution of the Dauphin County parole detainer. (See Doc. 6). As a result
of that arraignment, by order of the court (Doc. 9) dated February 11, 2011, this
court dismissed the petition for writ of habeas corpus and stay of extradition (Doc.
1) as moot and closed the case.

2

On March 4, 2011, Smith filed the present motion to reopen (Doc. 11), and a
motion to proceed in forma pauperis (Doc. 13), asserting that defendants continue to
violate his due process rights under the Fifth and Fourteenth Amendments.
Subsequently, on March 24, 2011, Smith filed a motion to order a polygraph test.
(Doc. 14). In the latest motion, Smith states that on March 14, 2011, Dauphin
County Judge Jeannine Turgeon held a hearing and dismissed the remaining
charges against him, but did not close the docket in the simple assault case. (Id. ¶¶
1, 2). Smith was released on parole and will remain on parole until he satisfies the
restitution order in the simple assault case. Smith contends this is a renege of the
agreement made with Zawisky, and asks that this court reopen the above-captioned
matter “because it[’]s obvious he will not get a chance to have his arguments heard
in the common pleas court.” (Id. ¶ 4). Smith has since filed for a re-hearing before
the Honorable Jeannine Turgeon. (Id. ¶ 11).
II.

Discussion
A state prisoner’s federal writ of habeas corpus filed pursuant to 28 U.S.C. §

2254 shall not be granted by the court unless the individual is in custody pursuant
to a judgment of a state court, and his custody violates the Constitution, or laws of
the United States. See 28 U.S.C. § 2254(a).1 Additionally, a petitioner must
establish that: (1) he exhausted his administrative remedies in the state courts, or

1

The court notes that the appropriate respondent in a § 2254 action is “the
state officer who has custody” of the petitioner. Rule 2(a), Rules Governing Section
2254 Cases in the United States District Courts (as amended Feb. 1, 2010).
3

(2) “there is an absence of available State corrective process,” or (3) under the
circumstances, state processes are ineffective to protect the petitioner’s rights. 28
U.S.C. § 2254(b)(1).2 Smith is no longer incarcerated, however he remains under
the supervision of Dauphin County Adult Probation and Parole until he satisfies the
restitution order in the simple assault matter. Smith’s petition is not mooted by his
release from incarceration. An individual on probation or parole satisfies the
custody requirement of the federal habeas corpus statute. See Leyva v. Williams,
504 F.3d 357, 363 (3d Cir. 2007) (citing Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.
2004).
Although Smith is in custody for purposes of the habeas corpus statute, he
has yet to exhaust his remedies in state court, a prerequisite to filing a federal
habeas corpus petition. Nor has Smith established an absence of available state
processes or that such processes are ineffective. Before a state prisoner brings an
action in federal court, the state court should retain the first opportunity to address

2

A state prisoner’s petition for writ of habeas corpus is properly brought
under 28 U.S.C. § 2254 when he is in custody pursuant to the judgment of a state
court. See Coady v. Vaughn, 251 F.3d 480, 484-86 (3d Cir. 2001). When an
individual is in state custody for reasons other than a judgement of a state court,
such as an individual in pretrial detention, a petition for writ of habeas corpus is
properly brought pursuant to 28 U.S.C. § 2241. See Chambers v. DeRose, Civ. No.
4:10-CV-2070, 2010 WL 4623897 (M.D. Pa. Nov. 5, 2010) (pretrial detainee’s petition
for writ of habeas corpus properly brought under § 2241); see also Coady, 251 F.3d
at 484-86 (relying on the cannon of statutory construction that the more specific
statute takes precedence over the more general statute and concluding that § 2254
implements the more general grant of habeas corpus authority found in § 2241).
Smith’s custody is pursuant to a state court judgment in a simple assault (see Doc.
11, at 12), therefore, his petition is properly considered under § 2254.
4

purported violations of a state prisoner’s constitutional rights. See Coleman v.
Thompson, 501 U.S. 722, 731 (1991). In instances where a petitioner fails to exhaust
state court remedies, “principles of federalism and comity require district courts to
abstain from enjoining pending state criminal proceedings absent extraordinary
circumstances.” Port Auth. Police Benevolent Assoc., Inc. v. Port Auth. of N.Y. and
N.J. Police Dep’t, 973 F.2d 169, 173 (3d Cir. 1992); see also Younger v. Harris, 401
U.S. 37 (1981). Federal court intervention is justified only when a petitioner faces
the threat of irreparable harm. See Chambers v. DeRose, Civ. No. 4:10-CV-2070,
2010 WL 4623897, at *3 (M.D. Pa. Nov. 5, 2010) (citing Dombrowski v. Pfister, 380
U.S. 479, 482-83 (1965).
The instant matter fails to present any extraordinary circumstances to
warrant the court’s intervention. Smith is actively pursing the matter at the state
court level. On March 14, 2011, Smith had a video conference hearing with the
Honorable Jeannine Turgeon of the Dauphin County Court of Common Pleas. The
court dismissed the remaining charges against Smith, and Smith was released,
although he remains on parole in the matter with the restitution order. Smith
contends that the continued parole and supervision by Dauphin County is a
violation of his constitutional rights, and filed a motion for rehearing with Judge
Turgeon, on March 14, 2011. The state court’s failure to act with the swiftness
desired by Smith, neither establishes that “he will not get a chance to have his
arguments heard” (see Doc. 14 ¶ 4), nor creates extraordinary circumstances to
warrant this court’s intervention. Smith’s petition for rehearing is currently
5

pending before the Dauphin County Court of Common Pleas. This court’s
intervention is therefore unwarranted, and the court will decline to reopen the
above-captioned matter.
III.

Conclusion
For the foregoing reasons, the court will deny the motion to reopen (Doc. 11),

and dismiss the motion to proceed in forma pauperis (Doc. 13) and motion to order
a polygraph test (Doc. 14) as moot.
An appropriate order follows.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

April 12, 2011

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES E. SMITH

:
:
Petitioner
:
:
v.
:
:
COMMONWEALTH OF
:
PENNSYLVANIA, WARDEN OF THE :
YORK COUNTY PRISON, and
:
DAUPHIN COUNTY ADULT
:
PROBATION AND PAROLE
:
:
Respondents
:

CIVIL ACTION NO. 1:11-CV-0264
(Judge Conner)

ORDER
AND NOW, this 12th day of April, 2011, upon consideration of the motion to
reopen (Doc. 11) the above captioned matter, the motion to proceed in forma
pauperis (Doc. 13) and the motion to order a polygraph test (Doc. 14), and for the
reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1.

The motion to reopen (Doc. 11) is DENIED.

2.

The motion to proceed in forma pauperis (Doc. 13) is DISMISSED as
MOOT.

3.

The motion to order a polygraph test (Doc. 14) is DISMISSED as
MOOT.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge