Kuhn v. Gillmore et al

Filing 5

MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Habeas Corpus filed by Michael A Kuhn. Signed by Honorable Malachy E Mannion on 3/2/15. (Attachments: # 1 Unpublished Opinion(s))(bs)

Page 1
Not Reported in F.Supp.2d, 2001 WL 1352120 (M.D.Pa.)
(Cite as: 2001 WL 1352120 (M.D.Pa.))

Only the Westlaw citation is currently available.

August 19, 1993. Petitioner took a further appeal to the
Pennsylvania Supreme Court. This appeal was denied on
December 5, 1995. (Doc. 1.)

United States District Court, M.D. Pennsylvania.
Robert BOLUS, Petitioner
v.
DISTRICT ATTORNEY OF LACKAWANNA
COUNTY, Attorney General of the Commonwealth of
Pennsylvania, Respondent
No. 3:CV-01-1990.
Oct. 26, 2001.
MEMORANDUM
CAPUTO, District J.
*1 Presently before me is Petitioner Robert Bolus'
petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241 and § 2254, filed October 17, 2001. The District
Attorney of Lackawanna County and the Attorney General
of The Commonwealth of Pennsylvania are named as
respondents. Because I find that Petitioner does not meet
the “in custody” requirement, I will dismiss his petition for
writ of habeas corpus.
BACKGROUND
On September 21, 1991, Petitioner was found guilty
in the Court of Common Pleas of Lackawanna County of
two (2) counts of receiving stolen property, one (1) count
of tampering with or fabricating physical evidence, and
one (1) count of criminal solicitation to commit the
criminal offense of tampering with or fabricating physical
evidence. (Doc. 1.) Petitioner was sentenced on September
29, 1992 to four (4) to twenty-four (24) months of
imprisonment. (Doc. 1.)
Petitioner completed his sentence prior to the
conclusion of his direct appeals. On October 8, 1992,
Petitioner filed a motion for reconsideration and/or to
modify sentence. The motion was denied on October 9,
1992. (Doc. 1.)
On October 10, 1992, Petitioner appealed to the
Pennsylvania Superior Court. This appeal was denied

Petitioner alleges that in September 2001 he
discovered the existence and significance of records seized
by the police, which form the basis for relief. (Doc. 1.)
On October 9, 2001, Petitioner filed a state habeas
corpus motion in the Lackawanna County Court of
Common Pleas. On October 10, 2001, Petitioner filed a
motion for an expedited hearing and determination of his
state habeas corpus claim.
On October 17, 2001, petitioner filed the instant
petition for habeas corpus.
DISCUSSION
This petition, though styled as a petition under 28
U.S.C. § 2241 and § 2254, arises only under 28 U.S.C. §
2254.
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application for
a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a state court only on the
ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a) (emphasis added). While the “in
custody” requirement is liberally construed for purposes
of habeas corpus, Maleng v. Cook, 490 U.S. 488, 492, 109
S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989), a petitioner
must be in custody under the conviction he is attacking
when the petition is filed, in order for this court to have
jurisdiction under § 2254. Maleng, 490 U.S. at 490-91,
109 S.Ct. at 1925.
No court has held that a habeas petitioner is in
custody when a sentence imposed for a particular
conviction had fully expired at time the petition was filed.
Indeed, Carafas v. LaVellee,FN1 391 U.S. 234, 88 S.Ct.
1556, 20 L.Ed.2d 554 (1968), “strongly implies the

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Not Reported in F.Supp.2d, 2001 WL 1352120 (M.D.Pa.)
(Cite as: 2001 WL 1352120 (M.D.Pa.))

contrary ... The unconditional release [of petitioner] raised
a ‘substantial issue’ as to [whether] the statutory ‘in
custody’ requirement [was satisfied].” Maleng, 490 U.S.
at 491-92, 109 S.Ct. at 1925-26, (quoting Carafas v.
LaVellee, 391 U.S. at 238, 88 S.Ct. at 1559-60).

FN2. A conviction underlying an expired
sentence could be challenged in a collateral
attack on a subsequent sentence that the expired
sentence was to enhance. Maleng, 490 U.S. at
493-94, 109 S.Ct. at 1927.

FN1. In Carafas, the petitioner filed his habeas
petition while he was still incarcerated under the
sentence he sought to attack. While his appeal
for the denial of habeas relief was pending, he
was subsequently unconditionally discharged
from custody. The Supreme Court there held that
the case was not moot, noting the “collateral
consequences” of petitioners conviction, such as
his inability to vote, engage in certain businesses,
hold public office, or serve as a juror. Carafas,
391 U.S. at 237-38, 88 S.Ct. 1559.

The effect of collateral consequences of Petitioner's
conviction is the disqualification from service in public
office. That is simply not sufficient to establish that
Petitioner is in custody. The result Petitioner seeks today
is available only in cases where a judge uses a petitioner's
allegedly improper prior conviction to enhance his newer,
current, sentence. See Lackawanna County District
Attorney v. Coss, Jr., 532 U.S. 394, 121 S.Ct. 1567, 149
L.Ed. 608 (2001) (holding that relief is generally
unavailable to a state prisoner through a petition for a writ
of habeas corpus when the challenge of the current
sentence was on the ground that it was enhanced based on
an allegedly unconstitutional prior conviction for which
the petitioner is no longer is custody.)

*2 In Maleng, a federal prisoner brought a habeas
corpus petition alleging that his prior, expired conviction
was illegally used to enhance his current sentence. The
Supreme Court held that a habeas petitioner could
challenge sentences imposed upon him even if he was not
serving those sentences, because he was incarcerated in
federal prison on other charges. Maleng, 490 U.S. at 488,
109 S.Ct. At 1923. The Supreme Court based its Maleng
decision to allow petitioner to bring a habeas suit on the
fact that the petitioner had been in custody at the time the
petition was filed and that petitioner was attacking the
sentence he was then serving as well as the prior sentence
that was used to enhance the sentence he was serving. The
Court also noted, however, that “[o]nce the sentence
imposed for a conviction has completely expired, the
collateral consequences of that conviction are not
themselves sufficient to render the individual ‘in custody’
for the purposes of a habeas attack upon it.” Maleng, 490
U.S. at 492, 109 S.Ct. at 1926. FN2 Collateral consequences
of a conviction include such things as deprivation of the
right to vote, to hold office, to serve on a jury, or to
engage in certain businesses, see St. Pierre v. United
States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943)
(per curiam), or the possibility that the conviction would
be used to impeach testimony he might give in a future
proceeding, Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830,
83 L.Ed.2d 821 (1985).

Therefore, the collateral consequences of an expired
sentence do not confer “in custody” status on a habeas
corpus petitioner. Maleng, 490 U.S. at 492, 109 S.Ct. at
1926. (“Once the sentence imposed for a conviction has
completely expired, the collateral consequences of that
conviction are not themselves sufficient to render an
individual “in custody” for the purposes of a habeas attack
upon it”).
Here the Petitioner's sentence was served and has
completely expired. He is therefore not “in custody” for
purposes of eligibility for relief under 28 U.S.C. § 2254.
I therefore hold that Petitioner is not “in custody” based
on his conviction and not being able to serve in elected
office as a consequence. Accordingly, the Petitioner's
petition for a writ of habeas corpus will be denied.
*3 An appropriate order will follow.
ORDER
NOW, this 26th day of October, 2001, it is hereby
ORDERED that:
1. The petition for a writ of habeas corpus is
dismissed for failure to satisfy the “in custody”

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Not Reported in F.Supp.2d, 2001 WL 1352120 (M.D.Pa.)
(Cite as: 2001 WL 1352120 (M.D.Pa.))

requirement.
2. The Clerk of Court is directed to close this case.
3. There is no basis for the issuance of a certificate of
appealability.
M.D.Pa.,2001.
Bolus v. District Attorney of Lackawanna County
Not Reported in F.Supp.2d, 2001 WL 1352120 (M.D.Pa.)
END OF DOCUMENT

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