Yelverton v. Gavin et al

Filing 4

MEMORANDUM Petitioner also contends that he was not afforded credit for 78 days of confinement which he served in the Post Stockade at Fort Huachuca, Arizona in connection with his court martial proceedings. It appears that Petitioner may be asserti ng that said period should be credited against service of his ongoing Pennsylvania state sentence. However, there is no indication that Petitioner has raised and exhausted any such claim in Pennsylvania state court. An appropriate Order will enter.(See Memorandum) Signed by Honorable Richard P. Conaboy on 4/13/12. (cc, )

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

JAMES Z. YELVERTON, JR.,
Petitioner
v.
WAYNE J. GAVIN, ET AL.,
Respondents

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CIVIL NO. 3:CV-12-119
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
James Z. Yelverton, Jr., an inmate presently confined at the
State Correctional Institution, Waymart, Pennsylvania (SCIWaymart), initiated this pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.

Along with his petition, Yelverton

has submitted a request for leave to proceed in forma pauperis
which will be granted for the sole purpose of the filing of this
action with the Court.
Named as Respondents are SCI-Waymart Superintendent Wayne J.
Gavin, Secretary of Defense Leon Panetta; Secretary of the Army
John M. McHugh and the Judge Advocate General of the United States
Army.1 It is initially noted that Petitioner’s action does not
challenge either the legality of his Pennsylvania state conviction
or sentence.

1. The only properly named Respondent in a federal habeas corpus
action is Petitioner’s custodial official. See 28 U.S.C. § 2242.
1

Rather, Petitioner seeks federal habeas corpus relief with
respect to his 1968 general court martial.2

According to the

Petition, while a member of the United States Army Yelverton plead
guilty to charges of: (1) being absent without leave for one day;
(2) larceny (taking one dollar apiece from two fellow soldiers);
(3) extortion (one dollar apiece from two soldiers); and (4) absent
without leave for a two day period.

Petitioner was sentenced by a

military tribunal on July 11, 1968 to a bad conduct discharge,
forfeiture of

pay and allowances, a grade reduction, and to be

confined at hard labor for ten months.

See Doc. 1, ¶ 4.

The findings and sentence were affirmed by the Military
Board of Review on April 1, 1969.

Petitioner subsequently executed

a written request on April 22, 1969 asking that “appropriate action
be taken to finalize the sentence as affirmed by the Board of
Review without further delay.”

Id. at Exhibit 9.

There does not appear to have been any further developments
in Petitioner’s case until May 2009 when he filed a pro se petition
with the United States Court of Appeals for the Armed Forces
seeking review of the decision of the Board of Review.
Exhibit 8.

See id. at

Following appointment of counsel, Petitioner was

granted leave to supplement his petition.

See id. at Exhibit 7.

By Order dated November 13, 2009, the Court of Appeals for the

2. The military has
which is governed by
forth in 10 U.S.C. §
martial proceedings,
by the United States

its own independent criminal justice system
the Uniform Code of Military Justice as set
801 et seq. The Code provides for court
appellate review and limited certiorari review
Supreme Court.
2

Armed Forces denied Yelverton’s petition for review.

See id. at

Exhibit 6.
Next, Petitioner filed a writ of coram nobis3 which was
denied by the United States Army Court of Criminal Appeals on
February 17, 2011.

See id. at Exhibit 5.

A request for

reconsideration en banc was denied on March 18, 2011.
Exhibit 4.

See id. at

The United States Court of Appeals for the Armed Forces

denied an appeal from that decision by order dated July 18, 2011.
See id. at Exhibit 3.

Thereafter, on September 26, 2011, Yelverton

filed a petition for writ of certiorari with
Supreme Court.

See id. at Exhibit 2.

the United States

On December 5, 2011, the

Supreme Court denied Petitioner’s request for review.
Exhibit 1.

See id. at

This action was subsequently filed.

Yelverton’s present habeas corpus petition claims that he
was provided with ineffective assistance of counsel during the
course of his court marital proceedings in that he was not properly
advised of his right to appeal by his appointed counsel.
Specifically, it is alleged that the aforementioned April 22, 1969
request for final action executed by Petitioner was not an
intentional and knowing waiver of his appellate rights and was
“erroneously submitted.”

Doc. 1, p. 4.

As a result, Yelverton

alleges that he “was denied his direct appeal rights.”

Id.

3. A writ of error coram nobis is similar to a habeas corpus
challenge to a criminal conviction except that it may be brought
after a defendant has served his sentence. See Maclean v. United
States, 454 F.3d 1334, 1335-36 (Fed. Cir. 2006).
3

Petitioner further contends that an excessive sentence was
imposed and that he was not afforded credit for seventy-eight (78)
days of confinement which he served in the Post Stockade at Fort
Huachuca, Arizona in connection with his court martial proceedings.
See id. at p. 6.
As relief, Petitioner “seeks the credit time he did not
receive during sentencing (78) days,” reinstatement of his
appellate rights, restoration of his military benefits (including
medical) during his appeals, and the scheduling of a hearing on
those issues before this Court.

Id. at p. 8.

Discussion
Habeas corpus petitions brought under § 2241 are subject to
summary dismissal pursuant to Rule 4 ("Preliminary Consideration by
the Judge") of the Rules Governing Section 2254 Cases in the United
States District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable
to § 2241 petitions under Rule 1(b)).

See, e.g., Patton v. Fenton,

491 F. Supp. 156, 158-59 (M.D. Pa. 1979).

Rule 4 provides in

pertinent part: "If it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not
entitled to relief in the district court, the judge shall make an
order for its summary dismissal and cause the petitioner to be
notified."

A petition may be dismissed without review of an answer

"when the petition is frivolous, or obviously lacking in merit, or
where . . . the necessary facts can be determined from the petition
itself . . . ."

Allen v. Perini, 424 F.2d 134, 141 (6th Cir.),

4

cert. denied, 400 U.S. 906 (1970).

Accord Love v. Butler, 952 F.2d

10, 15 (1st Cir. 1991).
In Custody
The United States District Courts have jurisdiction over
habeas corpus applicants who claim that they are in custody in
violation of their constitutional rights pursuant to § 2241.
Federal courts are likewise vested with jurisdiction over
individuals who are confined pursuant to a sentence received from
the military courts.

See Hirsch v. Secretary of the Army, 172 F.3d

878 (10th Cir. 1999) (unpublished) (military prisoners who have been
transferred into federal custody are subject to all of the federal
laws and regulations governing any other prisoner, including
federal parole provisions).
Pursuant to § 2241(c)(1) a habeas petitioner must make a
showing that he is “in custody under or by color of the authority
of the United States.”

See also

Carfas v. LaVallee, 391 U.S. 234,

238 (1968)(a habeas petitioner must be in custody under the
conviction or sentence under attack at the time his petition is
submitted).

The in custody requirement is equally applicable to

federal habeas corpus petitions filed by members of the armed
forces.

See Meck v. Commanding Officer, Valley Forge General

Hospital, 452 F.2d 758, 760 (3d Cir. 1971).
determined

In custody is

as of the filing date of the habeas petition.

See

Venson v. Killina, 2009 WL 1228444 * 4 (W.D. Pa. 2009).
The United States Supreme Court in Lackawanna County v.
Coss, 532 U.S. 394

(2001), noting the need for finality of
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convictions and ease of administration, held that Coss did not
qualify to have his federal habeas petition reviewed because the
expired prior conviction which was being challenged did not
actually increase the length of his current sentence.
In the present case petitioner is challenging the legality
of his 1968 court martial for which a ten month sentence was
imposed.

It is apparent that the sentence imposed in Petitioner’s

general court marital expired over forty (40) years ago.

There is

also no indication that the court martial increased the length of
Yelverton’s ongoing Pennsylvania state sentence.

Accordingly, it

is apparent that Petitioner has failed to satisfy the in custody
requirement with respect to the challenge to the legality of his
1968 general court marital and as such his present habeas corpus
action is subject to dismissal.
Timeliness
As discussed earlier, in addition to challenging the
legality of his court marital Petitioner seeks as partial relief
the reinstatement of his military (including medical) benefits
during his appeals.

See Doc. 1, p. 8.

It has been recognized that

an action seeking invalidation of a court marital and other relief
such as back pay is subject to a six (6) year statute of
limitations.

See Maclean, 454 F. 3d at 1336.

Moreover, the time

period for such an action accrues upon the military discharge of
the applicant.

See id.

Moreover, equitable tolling is not

available for time period in which the litigant is seeking coram
nobis relief.
6

Clearly, Yelverton’s present action is also subject to
dismissal on the basis of untimeliness under the standards
announced in Maclean since he did not pursue any legal remedies
challenging the legality of his court marital whatsoever till
approximately forty (40) years following his military discharge.4
Sentence Credit
Petitioner also contends that he was not afforded credit for
78 days of confinement which he served in the Post Stockade at Fort
Huachuca, Arizona in connection with his court martial proceedings.
It appears that Petitioner may be asserting that said period should
be credited against service of his ongoing Pennsylvania state
sentence.

However, there is no indication that Petitioner has

raised and exhausted any such claim in Pennsylvania state court.
An appropriate Order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: APRIL 13, 2012

4. It also appears that the substance of Petitioner’s pending
action may have been included in his earlier certiorari petition to
the United States Supreme Court. If so, reconsideration of those
same arguments by this Court would also potentially be precluded.

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