Clark v. Tice et al

Filing 20

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 11/19/19. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERALD CARROL CLARK, JR.,
Petitioner
v.
ERIC TICE, et al.,
Respondents

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CIVIL NO. 3:17-CV-1277
(Judge Caputo)

MEMORANDUM
Petitioner, Gerald Carrol Clark, Jr., a former Pennsylvania state inmate,1 filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2008
conviction for failing to comply with the registration requirements for out-of-state sex
offenders living in Pennsylvania, 18 PA. CONS. STAT. ANN. § 4915.1(a)(1). (ECF No. 1.)
Respondent argues in favor of dismissal of the Petition as Mr. Clark was not “in custody”
pursuant to his 2008 conviction when he filed his Petition and because it is untimely.
(ECF No. 13.) For the reasons set forth below, the Court will dismiss the Petition for lack
of jurisdiction because Mr. Clark does not meet the “in custody” requirement under 28
U.S.C. § 2254(a).

1

Mr. Clark is not presently under the jurisdiction of the Pennsylvania Department of
Corrections (DOC). See http://inmatelocator.cor.pa.gov/#/ (last visited Nov. 18, 2019). He has
not provided the Court with a current address.

I.

Relevant Procedural History
On October 27, 2004, Mr. Clark plead guilty in the Circuit Court for Carroll County,

Westminster, Maryland to a third-degree sexual offense, and received a 6-year prison
term (suspended), 5-years’ unsupervised probation, 1-year of home confinement and lifetime registration under Maryland’s version of Megan’s Law. At the time Mr. Clark was
employed in Maryland and registered with the Maryland State Police.

Additionally,

because he lived in Adams County, Pennsylvania, he also registered with the
Pennsylvania State Police (PSP). (ECF No. 1 at 6-7 and ECF No. 13 at 43.) In January
2007, the PSP notified Mr. Clark of his obligation to notify the PSP of any change of
address, or employment, including termination within 48 hours. (ECF No. 13 at 31-33.)
In July 2007, police authorities learned Mr. Clark had been unemployed since April 2007.
(Id. at 33.)
On May 5, 2008, following a bench trial in the Court of Common Pleas of Adams
County, Pennsylvania, Mr. Clark was found guilty of failing to comply with the registration
of the sexual offenders’ requirements set forth in 18 PA. CONS. STAT. ANN. § 4915(a)(1).
On October 21, 2008, the trial court sentenced Mr. Clark to 30 days to 1-year
incarceration, followed by 1-year of consecutive probation, and $200.00 fine. (ECF No.
13-1 at 10 - 13.) Mr. Clark filed a timely direct appeal. (Id. at 24, Commonwealth v. Clark,
CP-01-CR-0001003-2007 (Adams Cty. Ct. Com. Pl.) (docket sheet)). On December 8,
2009, the Pennsylvania Superior Court affirmed Mr. Clark’s judgment of sentence. See
Commonwealth v. Clark, 990 A.2d 39 (Pa. Super. 2009),2 appeal denied, 13 A.3d 474

2

The Court takes judicial notice of the electronic docket sheet in this matter, available to
the public via Pennsylvania’s Unified Judicial Docket System at: https://ujsportal.pacourts.us/ (last
visited Nov. 18, 2019).

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(Pa. 2010). The Pennsylvania Supreme Court denied allocatur on November 17, 2010.
See Commonwealth v. Clark, 608 Pa. 660, 13 A.3d 474 (Pa. 2010) (No. 9 MAL 1010,
Table).3 On January 28, 2011, Mr. Clark’s application for reconsideration was denied by
the Pennsylvania Supreme Court. (Id.)
The trial court stayed the execution of the judgment of sentence throughout the
completion of Mr. Clark’s direct appeal. (Id. at 24–26.) On February 28, 2011, the
sentencing court directed Mr. Clark to report to the Adams County Prison on March 18,
2011 to commence serving his sentence. (ECF No. 13-1 at 27.) The sentencing court
subsequently granted Mr. Clark’s request for parole effective April 20, 2011. (Id.) On
March 27, 2013, the sentencing court entered an order noting Mr. Clark’s completion of
his sentence and probation. (Id. at 30 and ECF No. 1 at 20.)
Mr. Clark filed a petition for post-conviction collateral relief on April 7, 2016,
pursuant to the Pennsylvania’s Post Conviction Relief Act (PCRA), 42 PA. CONS. STAT.
ANN. § 9545, et seq. (ECF No. 13-1 at 31.) He filed a second petition on May 16, 2016.
(Id.) On April 13, 2016, without appointing Mr. Clark counsel, the sentencing court issued
a notice of its intent to dismiss the PCRA petition based on Mr. Clark’s ineligibility for relief
as he was no longer serving a sentence of imprisonment or probation on the sentence he
was challenging and because the petition was untimely. (ECF No. 1 at 13.) On June 3,
2016, the court dismissed Mr. Clark’s PCRA petition without hearing.
[T]he Defendant is ineligible for relief as he is currently not
serving a sentence of imprisonment, probation, or parole for
the crime upon which he was convicted. See 42 Pa. C.S.A. §
9543. Additionally, the Petitions have not been filed within
one year of the date of final judgment and therefore the Court
3

The Court takes judicial notice of the electronic docket sheet in this matter, available to
the public via Pennsylvania’s Unified Judicial Docket System at: https://ujsportal.pacourts.us/
(last visited Nov. 18, 2019).

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lacks jurisdiction to consider the Petitions pursuant to 42 Pa
C.S.A. § 9545(b). Finally, the Court notes the claim that the
sentence is illegal pursuant to Commonwealth v. Gordon, 992
A.2d 204 (Pa. Super. 2010), is meritless as Defendant was
convicted of failing to comply with the registration
requirements under former 42 Pa. C.S.A. § 9795.1(a).
Commonwealth v. Gordon addresses those required to
register under former [42 Pa. C.S.A. § 9]795.1(b)(4).
(Id. at 12.) Mr. Clark filed an appeal.4 On December 22, 2016, the Superior Court affirmed
that Mr. Clark was ineligible for relief as his sentence had expired. See ECF No. 1 at 1921; see also Commonwealth v. Clark, No. 953 MDA 2016, 2016 WL 7406862 (Dec. 22,
2016). The Supreme Court of Pennsylvania denied Mr. Clark’s petition for allowance of
appeal on July 6, 2017. See Commonwealth v. Clark, 642 Pa. 28, 169 A.3d 1031 (Pa.
2017)(Table).
Pursuant to the mailbox rule,5 the Court deems Mr. Clark’s habeas Petition filed
on July 17, 2017. (ECF No. 1.) When he filed his Petition, Mr. Clark was incarcerated
pursuant to a 2014 negotiated guilty plea agreement for failing to register with the PSP
and indecent assault of a person less than 13 years of age. See Commonwealth v. Clark,
CP-01-CR-0001094-2013 (Adams Cty. Ct. Com. Pl.)6

4

The Court takes judicial notice of the electronic docket sheet in this matter, available to
the public via Pennsylvania’s Unified Judicial Docket System at: https://ujsportal.pacourts.us/ (last
visited Nov. 19, 2019).
5

The “prisoner mailbox rule” dictates that the filings of pro se prisoners are deemed filed
on the date deposited in the prison mailbox or given to prison authorities for mailing. Houston v.
Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).
6

The Court takes judicial notice of the electronic docket sheet in this matter, available to
the public via Pennsylvania’s Unified Judicial Docket System at: https://ujsportal.pacourts.us/
(last visited Nov. 19, 2019).

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II.

Discussion
The federal writ of habeas corpus is only available to persons “in custody” for the

conviction or sentence under attack at the time the petition is filed. See 28 U.S.C. §
2254(a) (2019); Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 1925, 104 L.Ed.2d
540 (1989). This requirement is jurisdictional. See Piasecki v. Court of Common Pleas,
917 F.3d 161, 165-66 (3d Cir. 2019), cert. denied, No. 18-1490, 2019 WL 5686456 (Nov.
4, 2019).

Where a federal habeas prisoner is in custody for multiple offenses, he or she

“can be in custody for one but not the other.” Orie v. Sec’y Pa. Dep’t of Corr., 940 F.3d
845, 850 (3d Cir. 2019). Thus, a district court must determine whether the petitioner is
“in custody” pursuant to the conviction he or she seeks to challenge.
To satisfy the “in custody” requirement, a petitioner must be “’in custody’ under the
conviction or sentence under attack at the time [the] petition is filed.” Maleng, 490 U.S.
at 490-91, 109 S.Ct. at 1925. The custody requirement does not require that a petitioner
be physically confined, id. at 490, 109 S.Ct. at 1925, but it does require that he or she
“suffers from a ‘non-negligible restraint on [her] physical liberty’ because of a particular
conviction.” Orie, 940 F.3d at 850 (quoting Piasecki, 917 F.3d at 166.) It is wellestablished that a petitioner satisfies the “in custody” requirement if incarcerated, on
parole, probation, or subject to outstanding community service obligations, when filing a
petition for writ of federal habeas challenging the conviction or sentence that imposed the
penalty. See Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 376-77, 9
L.Ed.2d 285 (1963) (conditions and restrictions on parolee involved “significant restraints”
on parolee’s liberty to constitute “custody”); Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.
2004) (the “in custody” requirement is satisfied if petitioner is on probation); Barry v.
Bergen Cty. Probation Dept., 128 F.3d 152 (3d Cir. 1997) (community service obligations

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satisfied “custody” requirement to support habeas corpus jurisdiction). However, “fines,
restitution orders, and other monetary penalties are insufficient to meet the ‘in custody’
requirement.” United States v. Ross, 801 F.3d 374, 380 (3d Cir. 2015).
The United States Supreme Court has “never held … that a petitioner may be ‘in
custody’ under a conviction when the sentence imposed for that conviction has fully
expired at the time his petition is filed.” Maleng, 490 U.S. at 491, 109 S.Ct. at 1925
(emphasis in original). Thus, “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 on it.” Id., 490 U.S.
at 492, 109 S.Ct. at 1926. The fact that a conviction used to enhance a subsequent
criminal sentence may not generally be used to “challenge the enhanced sentence
through a petition under § 2254 on the ground that the prior conviction was
unconstitutionally obtained.” Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 404,
121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (2001).
When examining the various reporting and notification requirements of sex
offenders, the Third Circuit Court of Appeals, unlike other circuits, has held that the
conditions imposed by Pennsylvania’s Sex Offender Registration and Notification Act
(SORNA), 42 PA. CONS. STAT. ANN. § 9799.10, et seq., were “sufficiently restrictive to
constitute custody”.7 Piasescki, 917 F.3d at 170. The Third Circuit Court of Appeals has
held that a Pennsylvania sex offender’s post-incarceration SORNA reporting requirement
meets the “custody” requirement for federal habeas purposes to challenge the state court

7

“We recognize that several of our sister circuit courts of appeals have found that various
sex offender registration schemes were not sufficiently restrictive to constitute ‘custody.’”
Piasecki, 917 F.3d at 171.

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judgment that imposed the registration requirement as part of his judgment of sentence.
Id. at 173-76.
Here, it is important to highlight that Mr. Clark is challenging his 2008 Adams
County Court of Common Pleas conviction for failing to comply with the registration of the
out of state sexual offenders and not his 2004 Maryland conviction which imposed the
reporting requirements. The Adams County Court sentenced Mr. Clark to 30 days to 1year incarceration, followed by 1-year of consecutive probation, and $200.00 fine. (ECF
No. 13-1 at 10 - 13.) It is undisputed that Mr. Clark’s 2008 Adams County sentence
expired April 2013 when he completed his term of post-incarceration probation. It is also
undisputed that he was not incarcerated because of his 2008 Adams County conviction
when he filed the present habeas matter. Accordingly, Mr. Clark was not “in custody” for
the purpose of challenging his 2008 Adams County conviction when he filed the instant
petition. See Orie, 940 F.3d at 850-51.

III.

Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate

of appealability, an appeal may not be taken from a final order in a proceeding under 28
U.S.C. § 2254. A certificate of appealability may issue only if the applicant has made a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court's resolution of his constitutional claims or that jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). In the instant
matter, jurists of reason would not find the disposition of Mr. Clark’s petition debatable as

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he was not in custody pursuant to the 2008 Adams County conviction when he filed his
July 2017 petition for a writ of habeas corpus. As such, the court will not issue a certificate
of appealability in this case.

V.

Conclusion
For the reasons set forth above, the Court lacks jurisdiction to entertain Mr. Clark’s

petition for writ of habeas corpus challenging his 2008 Adams County conviction. As this
finding is dispositive, the Court need not address Respondent’s timeliness challenge to
the Petition. Accordingly, the Petition will be dismissed. A certificate of appealability will
not issue.
An appropriate Order follows.
Date: November 19, 2019

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge

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