VAN TASSEL v. PICCIONE et al

Filing 29

ORDER dismissing 16 Motion to Dismiss; dismissing 16 Motion to Strike; denying 26 Motion for Hearing filed by LYNN A. VAN TASSEL; denying 27 Motion to Compel. Signed by Magistrate Judge Robert C. Mitchell on 2/22/2012. (spc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LYNN A. VAN TASSEL,
Petitioner,
v.
HON. JUDGE THOMAS A. PICCIONE,
et al.,
Respondents.

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Civil Action No. 11-1516

ORDER
On November 29, 2011, Petitioner Lynn A. Van Tassel filed a petition for writ of habeas
corpus, challenging a 90-day term of incarceration imposed on her on November 17, 2011 in the
Court of Common Pleas of Lawrence County, Pennsylvania, as a result of a contempt charge that
arose in No. 20288 of 2008, D.S.B., a support proceeding between Petitioner and her exhusband. She names as respondents the Honorable Thomas M. Piccione, the judge who imposed
the sentence, and the Attorney General of the State of Pennsylvania.
On January 31, 2012, Judge Piccione filed a “motion to strike the Honorable Thomas M.
Piccione from the caption or, in the alternative, motion to dismiss” (ECF No. 16), along with a
brief in support (ECF No. 17), in which he argues that: 1) he is not a proper respondent in a
federal habeas case because he is not Petitioner’s custodian; 2) Petitioner is not “in custody”
because she was released from jail and electronic monitoring on January 4, 2012; and 3)
Petitioner has appealed the November 17, 2011 order to the Pennsylvania Superior Court and
therefore she has not exhausted her state court remedies. A briefing order was entered, giving
Petitioner until February 22, 2012 to respond (ECF No. 18).
On February 20, 2012, Petitioner filed two pleadings, a motion for expedited evidentiary
hearing (ECF No. 26) and a motion to compel filing of state court/agencies records (ECF No.

27). In the first motion, she contends that, contrary to Respondent’s representation, she was
sentenced based on a charge of criminal contempt without due process of law, and she requests
that this Court hold an evidentiary hearing prior to March 6, 2012, the next date she is scheduled
to appear in the Court of Common Pleas on her ex-husband’s “motion to reinstate sentence.” In
the second motion, she asserts that the state court records forwarded to this Court by the Clerk of
Court for Lawrence County at the request of the District Attorney are incomplete because
various transcripts are missing, as are her appellate briefs, petitions for allocatur, petitions for
review and “a petition for writ of error coram vobis” she filed in the Pennsylvania Supreme
Court. She requests that this Court order the District Attorney to submit further state court
records.
Unfortunately, neither Petitioner’s submissions nor Respondent’s motion to
strike/dismiss are sufficient to guide this Court in the resolution of this unusual case. First,
contrary to Respondent’s representation, the documents submitted indicate that Petitioner
appears to be “on bail” from a “sentence” and therefore she is “in custody” for purposes of a
habeas corpus case. See United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 (3d Cir.
1975) (petitioner released on bail is in custody for habeas purposes); see also Duncan v. Walker,
533 U.S. 167, 176 (2001) (“federal habeas corpus review may be available to challenge … a
state court order of civil contempt.”). Second, because Judge Piccione has jurisdiction over
Petitioner’s case and is responsible for imposing her conditions of confinement, he may will
qualify as a proper respondent in a habeas case. See Reimnitz v. State’s Attorney of Cook
County, 761 F.2d 405, 409 (7th Cir. 1985) (circuit court of Cook County, which released the
petitioner on bail, was proper custodian); see also Barry v. Bergen County Probation Dep’t, 128
F.3d 152, 163 (3d Cir. 1997) (citing Reimnitz for the proposition that: “The important thing is

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not the quest for a mythical custodian, but that the petitioner name as respondent someone (or
some institution) who has both an interest in opposing the petition if it lacks merit, and the power
to give the petitioner what he seeks if the petition has merit-namely, his unconditional freedom.”)
Third, although Petitioner has not exhausted her state court remedies, she appears to be in the
process of doing so, and Respondent has not addressed the merits of Petitioner’s claim, which by
statute can be denied on the merits regardless of a failure to exhaust remedies. 28 U.S.C.
§ 2254(b)(2). See Carrascosa v. McGuire, 520 F.3d 249, 255 (3d Cir. 2008) (reaching the merits
of petitioner’s claim based on her incarceration for civil contempt despite her failure to complete
exhaustion of state court remedies at the time petition was filed). Finally, Respondent has not
adequately explained the nature of the contempt proceeding and what Petitioner’s remedies are
under state law. See United States v. Harris, 582 F.3d 512, 514-15 (3d Cir. 2009) (discussing
distinctions between civil and criminal contempt). Therefore, the Court will dismiss the motion
to dismiss and order Respondent to submit an answer to the petition that addresses these
questions.
On the other hand, Petitioner cannot obtain an expedited evidentiary hearing in this Court
in an attempt to “stay” (that is, enjoin) the state court from adjudicating the matter scheduled for
March 6, 2012, which would be an improper intrusion upon the proceedings in state court. See
Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227, 1234 (3d Cir. 1992) (federal
habeas intervention in ongoing state court criminal proceedings is barred by the abstention
doctrine of Younger v. Harris, 401 U.S. 37, 44 (1971)). Moreover, the state court records do not
need to be supplemented. Rather, if Petitioner wishes to have this Court review documents filed
in state court that are not already in the record, she should attach such documents to her response
to the answer.

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AND NOW, THEREFORE, this 22nd day of February, 2012,
IT IS HEREBY ORDERED that Respondent’s motion to strike the Honorable
Thomas M. Piccione from the caption or, in the alternative, motion to dismiss (ECF No. 16) is
dismissed. Respondent shall file an answer to the petition by March 14, 2012. This answer shall
address the following issues: 1) whether Petitioner is “in custody” for purposes of federal habeas
corpus; 2) whether Judge Piccione can be a proper respondent in this case and, if not, who the
proper respondent would be; 3) what the precise nature of Petitioner’s contempt is (civil or
criminal, direct or indirect), what are her available state court remedies and whether she has
exhausted them; and 4) the merits of her claim. Petitioner may file a response to the answer by
April 4, 2012.
IT IS FURTHER ORDERED that Petitioner’s motion for expedited evidentiary
hearing (ECF No. 26) is denied.
IT IS FURTHER ORDERED that Petitioner’s motion to compel filing of state
court/agencies records (ECF No. 27) is denied.

s/Robert C. Mitchell__________________
ROBERT C. MITCHELL
United States Magistrate Judge

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