Harriott v. Pennsylvania Department of Corrections et al

Filing 8

MEMORANDUM AND ORDER 1.Petitioner is granted leave to proceed in forma pauperis for the sole purpose of the filing of this action.2. Within twenty (20) days of the date of this Order, Petitioner shall file a response addressing the issues of whether his pending habeas corpus action is untimely and/or subject to dismissal on the basis of mootness as outlined herein.3. No further action shall be taken by this Court with respect to this matter pending resolution of the timeliness and mootness issues.4. Failure of Petitioner to respond to this Order may result in dismissal of his action.(cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
HORACE HARRIOTT, JR.,

:
:
Petitioner
:
:
v.
:
CIVIL NO. 3:CV-12-2534
:
PENNSYLVANIA DEPARTMENT OF,
:
(Judge Conaboy)
CORRECTIONS, ET AL.,
:
:
Respondents
:
_________________________________________________________________
MEMORANDUM
Background
Horace Harriott, Jr., an inmate presently confined at the
Lackawanna County Prison, Scranton, Pennsylvania, filed this pro
se petition pursuant to 28 U.S.C. § 2254.

Petitioner has also

submitted an in forma pauperis application which will be granted
for the sole purpose of the filing of this matter with this
Court.

Named as Respondents are the Pennsylvania Department of

Corrections and the Pennsylvania Board of Probation and Parole
(Parole Board).1

Service of the Petition has not yet been

ordered.
Harriott states that he arrested in Lackawanna County on
December 6, 1996 on drug related charges, Docket Number CP-35-CR0002187-1996.

Following a jury trial in the Lackawanna County

1

The only properly named respondent in a federal habeas
corpus action is the applicant’s custodial official. See 28 U.S.C.
§ 2242. Therefore, the Warden of the Lackawanna County Prison will
be substituted as sole Respondent.
1

Court of Common Pleas, Petitioner was convicted of those charges.
On July 18, 1997, Petitioner states that he was sentenced to a
five (5) to ten (10) year term of imprisonment.

Petitioner

indicates that he did not pursue a direct appeal or seek
collateral relief pursuant to Pennsylvania’s Post Conviction
Relief Act (PCRA).2

See doc. 1, ¶ 6.

Harriott’s pending petition seeks habeas corpus relief
asserting that the above sentence was excessive in that his
conviction was “improperly regarded as a subsequent
offense/conviction” to another criminal matter, Docket Number CP35-CR-002184-1996.

Specifically, Petitioner argues that said the

subsequent offense determination was improper because he was not
convicted of Docket Number CP-35-CR-002184-1996 prior to
committing Docket Number CP-35-CR-0002187-1996.

See id. at ¶ 9.

As relief, Petitioner request that the challenged sentence be
reduced to a three (3) to six (6) year term of imprisonment.
Discussion
A § 2254 habeas corpus petition may be brought by a state
prisoner who seeks to challenge either the fact or duration of
his confinement in prison.

See

Preiser v. Rodriguez, 411 U.S.

2

The PCRA permits motions for post-conviction collateral
relief for allegations of error, including ineffective assistance
of counsel, unlawfully induced guilty pleas, improper obstruction
of rights to appeal by Commonwealth officials, and violation of
constitutional provisions." Hankins v. Fulcomer, 941 F.2d 246, 251
(3d Cir. 1991).
2

475, 486-87 (1973).

Federal habeas corpus review is available

only “where the deprivation of rights is such that it necessarily
impacts the fact or length of detention.”
F.3d 532, 540 (3d Cir. 2002).

Leamer v. Fauver, 288

More recently, in Suggs v. Bureau

of Prisons, 2008 WL 2966740 *4 (D. N.J. July 31, 2008), the
district court reiterated that in cases where “a judgment in
Petitioner’s favor would not affect the fact or duration of
Petitioner’s incarceration, habeas relief is unavailable.”
Timeliness
Section 2244(d) of Title 28 of the United States Code
provides, in relevant part, as follows:
(d)(1) A 1-year period of limitation
shall apply to an application for a writ
of habeas corpus by a person in custody
pursuant to the judgment of a State
court. The limitation period shall run
from the latest of (A) the date on which the judgment became final
by the conclusion of direct review or the expiration
for seeking such review; ...
(d)(2) The time during which a properly
filed application for State postconviction or other collateral review
with respect to the pertinent judgment
or claim is pending shall not be counted
toward any period of limitation under
this subsection.
See generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir.
1999).
The running of limitations period is suspended for the
period when properly-filed state post-conviction proceedings are

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pending in any state court.

However, the period during which a §

2254 applicant could have filed a petition for writ of certiorari
with the United States Supreme Court from denial of an
application for state post conviction or other collateral relief
does not defer the commencement of the limitations period.
Lawrence v. Florida, 549 U.S. 327, 333-36 (2007).
additionally noted that the

See

It is

“one-year filing requirement is a

statute of limitations, not a jurisdictional rule, and thus a
habeas petition should not be dismissed as untimely filed if the
petitioner can establish an equitable basis for tolling the
limitations period.”

Jones, 195 F.3d at 159, citing Miller v.

New Jersey State Department of Corrections, 145 F.3d 616 (3d Cir.
1998).
Pursuant to the United States Supreme Court’s decision in
Day v. McDonough, 547 U.S. 198, 209-11 (2006), a district court
has the authority to raise the timeliness issue sua sponte even
where the matter has not been asserted by the respondent.

In

doing so, the parties must be afforded “fair notice and an
opportunity to present their positions.”

Id. at 210.

Similarly,

in United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005)
(en banc), our Court of Appeals held that a district court may
raise the 1-year statute of limitations on its own motion,
provided that the petitioner is furnished notice and an
opportunity to respond.

See also, Bloss v. Rozum, Civil Action

No. 08-2214, 2009 WL 124505 *4 (E.D. Pa. Jan. 14, 2009); Hammond

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v. Brooks, 2009 WL 1507564(E.D. Pa. May 29, 2009); and Phillips
v. Folino, 2008 WL 339817 (E.D. Pa. 2008).
It appears from the face of Harriott’s petition that it
may be barred by the one-year statute of limitations set forth in
§ 2244(d)(1).

In accordance with Day and Bendolph, this Court

will direct Petitioner to file a response addressing the question
of whether his action is timely filed.

Further action will not

be taken by this Court until the limitations issue is initially
addressed by Petitioner.
In Custody
Pursuant to 28 U.S.C. § 2254(a), a habeas petitioner must
make a showing that he is “in custody pursuant to the judgment of
a State Court.”

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).

In Maleng v. Cook, 490 U.S. 488 (1989)(per curiam),

the United States Supreme Court addressed a challenge to a state
conviction by an applicant who had already completed service of
his entire sentence.

The Court held that § 2254(a)’s in custody

requirement was satisfied because the challenged conviction was
used to enhance a subsequently imposed sentence which the
applicant had not yet begun to serve.

See id. at 493.

Consequently, the Court concluded that the habeas petition could
be properly construed as a challenge to the subsequent sentence.
In Daniels v. United States, 532 U.S. 374 (2001), the
Supreme Court established that a prior sentence used to enhance a

5

federal sentence is no longer open to collateral attack via a
motion under 28 U.S.C. § 2255.

In reaching that determination,

the Court stressed the need for finality of convictions and ease
of administration.
A subsequent Supreme Court ruling, Lackawanna County v.
Coss, 532 U.S. 394 (2001), addressed Coss’ challenge to his 1986
state conviction which he was no longer serving.

Specifically,

Coss claimed that his 1986 conviction resulted from ineffective
assistance of counsel.

Coss was serving a 1990 sentence and he

contended that he could still challenge the 1986 sentence because
it had negatively impacted his 1990 sentence. The Supreme Court,
again noting the need for finality of convictions and ease of
administration, held that Coss did not qualify to have his § 2254
petition reviewed because the expired prior conviction did not
actually increase the length of his current sentence.
“[O]nce the sentence imposed for a conviction has
completely expired, the collateral consequences are not
themselves sufficient to render an individual ‘in custody’ for
the purposes of a habeas attack upon it.”
492.

Maleng, 490 U.S. at

As noted by the Supreme Court in Daniels, habeas corpus and

similar collateral remedies “are not available indefinitely and
without limitation.”

Daniels,

532 U.S at 375.

The Court in

Coss noted that “once a state conviction is no longer open to
direct or collateral attack in its own right because the
defendant failed to pursue those remedies (or because the
defendant did so unsuccessfully) the conviction may be regarded

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as conclusively valid.”

Coss, 532 U.S. at 403.

See also Maleng,

490 U.S. at 492 (federal habeas corpus relief should not be
extended “where a habeas petitioner suffers no present restraint
from a conviction.”).
Petitioner’s pending action is set forth in ten (10)
sparsely worded paragraphs.

Based upon a careful review of

Harriott’s filing, it is unclear as to whether he is presently
serving the sentence imposed at Docket Number CP-35-CR-00021871996.

Clearly there is a potential that the ten (10) year

maximum sentence imposed in 1997 has now expired.

Accordingly,

this Court is unable to undertake an informed determination as to
whether this is a situation where a habeas petitioner is seeking
to challenge a current sentence on the grounds that it was
increased/enhanced by an expired conviction and sentence.
Accordingly, Harriott’s response should also address the in
custody/collateral consequence issue.3

Failure of Petitioner to

file a response to this Order may result in dismissal of his
action.

An appropriate Order will enter.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: FEBRUARY 5, 2013

3

Alternatively, if Petitioner does not wish to proceed
with this matter, he may simply file a request to withdraw his
action.

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
HORACE HARRIOTT, JR.,

:
:
Petitioner
:
:
v.
:
CIVIL NO. 3:CV-12-2534
:
PENNSYLVANIA DEPARTMENT OF,
:
(Judge Conaboy)
CORRECTIONS, ET AL.,
:
:
Respondents
:
_________________________________________________________________
ORDER
AND NOW THIS 5th DAY OF FEBRUARY, 2013, in accordance with
the accompanying Memorandum, IT IS HEREBY ORDERED THAT:

1.

Petitioner is granted leave to proceed in forma
pauperis for the sole purpose of the filing of this
action.

2.

Within twenty (20) days of the date of this Order,
Petitioner shall file a response addressing the
issues of whether his pending habeas corpus action is
untimely and/or subject to dismissal on the basis of
mootness as outlined herein.

3.

No further action shall be taken by this Court with
respect to this matter pending resolution of the
timeliness and mootness issues.

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4.

Failure of Petitioner to respond to this Order may
result in dismissal of his action.

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

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