BROWN v. WENEROWICZ et al

Filing 11

ORDER adopting Report and Recommendations re 6 Report and Recommendations.. Signed by Judge Arthur J. Schwab on 05/31/2013. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALTON D. BROWN,

)
Petitioner,
)
)
vs.
)
)
MIKE WENEROWICZ; THE
)
ATTORNEY GENERAL OF THE STATE )
OF PENNSYLVANIA,
)
Respondents. )

Civil Action No. 13-430
Judge Arthur Schwab/
Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER
The Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody, ECF No.4, was filed pro se by Alton Brown, who was, at the time of initiating this case,
incarcerated in the State Correctional Institute at Graterford on a conviction other than the one he
seeks to attack via this Petition. The case was referred to Magistrate Judge Maureen Kelly in
accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Civil Rules 72.C
and D.
Magistrate  Judge  Kelly’s  Report  and  Recommendation,  ECF  No.  6,  filed  on  April  4,  2013,  
recommended that the Petition be dismissed because, at the time Petitioner initiated these habeas
proceedings, he was no longer in custody on the conviction he sought to challenge by means of
these proceedings. Petitioner was informed that he had until April 22, 2013 by which to file
objections to the Report. On April 22, 2013, rather than file objections, Petitioner filed a motion
for extension of time in which to file his objections, requesting an additional 30 days. ECF No.
7. On April 23,  2013,  the  Court  granted  Petitioner’s  Motion  and  gave  him  until  May  24,  2013  by  
which to file his objections and informed him that no further extensions would be granted. On

May 8, 2013, Petitioner filed a Motion seeking a court order to permit him to access his legal
materials. ECF No. 8. The Court denied the Motion on May 9, 2013, and warned him that his
objections would still be due on May 24, 2013.

On May 28, 2013, Petitioner filed yet a second

Motion seeking a court order allowing Petitioner access to his legal files, ECF No. 9, and he also
filed on that same day, a second Motion for Extension of time in which to file his objections.
The undersigned denied those motions the same day.
Petitioner allegedly sought access to those records so that he might demonstrate that he
“was  ‘in custody’ at the time of filing his habeas corpus petition, and that there are severe
collateral legal consequences that were imposed upon him on the basis of the challenge[d]
conviction.”     ECF  No.  9  at  1,  ¶  3.     Similarly, Petitioner asserts repeats his claim in his second
Motion  for  Extension  of  Time,  that  his  inability  to  access  his  files  is  “preventing  him  from  
demonstrating  that  he  ‘was  in  custody’  at  the  time  he  filed  his  habeas  corpus  petition,  and,  that  
there are severe collateral legal consequences that were imposed on the basis of the challenged
conviction,  which  would  negate  the  magistrate’s  claim  that  he  is  not  entitled  to  relief  because  he  
sentence  has  expired.”     ECF  No.  10  at  1.  
To the extent that Petitioner is attempting to mount the argument that the unspecified
“severe  collateral  consequences”  allegedly stemming from the challenged conviction is sufficient
to  establish  that  he  was  “in  custody”  at  the  time  he  filed  the  present  Petition,  he  is  simply  wrong
on the law. Maleng v. Cook, 490 U.S. 488, 492 (1989).
In Maleng, the petitioner therein, who was at the time of filing his habeas petition then
serving an unrelated federal sentence, sought to challenge a 1958 state conviction whose sentence
had completely expired. The Court held that the Petitioner could not challenge the 1958
conviction  because  he  was  not  “in  custody”  for  that  conviction.     The  Court  held  so,  

notwithstanding  the  petitioner’s  contention  that  his  1958  conviction  was  used  to  enhance  a  state
sentence that he would begin to serve at the end of his federal sentence.

The Court stated:

While  we  have  very  liberally  construed  the  “in  custody”  requirement  for  the  
purposes of federal habeas, we have never extended it to the situation where a
habeas petitioner suffers no present restraint from a conviction. Since almost all
States have habitual offender statues, and many States provide as Washington does
for specific enhancement of subsequent sentences on the basis of prior convictions,
a contrary ruling would mean that a petitioner whose sentence has completely
expired could nonetheless challenge the conviction for which it is imposed at any
time  on  federal  habeas.     This  would  read  the  “in  custody”  requirement  out  of  the  
statute . . . .
Maleng, 490 U.S. at 492. See also Obado v. New Jersey, 328 F.3d 716 (3d Cir. 2003). Because
“collateral  consequences”  are  simply  insufficient  to  establish  “custody”  for  purposes  of  invoking  
habeas  corpus  relief  in  federal  court,  Petitioner’s  motions  are  properly  denied  and  to  the  extent  
that such Motions can be construed as objections, they are overruled.
Accordingly, after de novo review of the Report and the record of this case, it is hereby
ORDERED that the Report is adopted and we hereby ORDER that the Petition be dismissed. A
certificate of appealability is likewise DENIED.

s/Arthur J. Schwab
ARTHUR J. SCHWAB
UNITED STATES DISTRICT JUDGE
Dated: May 31, 2013
cc:

The Honorable Maureen P. Kelly
United States Magistrate Judge
ALTON D. BROWN
DL-4686
SCI Graterford
Box 246
Graterford, PA 19426-0244