DRAKE v. COMMONWEALTH OF PENNSYLVANIA

Filing 6

ORDER indicating that that the 4 Report & Recommendation is adopted as the opinion of the Court and we hereby ordered that the Petition be dismissed. A certificate of appealability is denied. Signed by Judge Nora Barry Fischer on 1/23/17. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DEANTE DRAKE,
Petitioner,

Civil Action No. 16-1822
Judge Nora Barry Fischer/
Chief Magistrate Judge Maureen P. Kelly

v.
COMMONWEALTH OF PENNSYLVANIA,
Respondent.

MEMORANDUM ORDER
The “Petition for Writ of Error Coram Nobis” (the “Petition”), ECF No. 3 (underlining
removed), was filed pro se by Deante Drake (“Petitioner”). In the Petition, Petitioner attacked
his Pennsylvania convictions arising on May 4, 1995 (“the May 4, 1995 state court
convictions”). By the time Petitioner filed the Petition, he had completed his sentences for the
May 4, 1995 state court convictions.
The case was referred to Chief 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. Chief
Magistrate Judge Kelly issued a Report and Recommendation (the “Report”), recommending that
the Petition be dismissed pre-service because the a United States District Court does not have
jurisdiction to review a state court conviction by means of a petition for writ of error coram
nobis. ECF No. 4. Furthermore, the Report noted that even if the Petition were construed as a
Petition for Writ of Habeas Corpus, the Petition would still be dismissible pre-service because
Petitioner was no longer in custody pursuant to the May 4, 1995 state court convictions that were
the object of Petitioner’s attack. Petitioner was notified that he had until January 5, 2017 to file
Objections to the Report. On January 10, 2017, Petitioner filed what he called a “Petition for

clarification for reconsideration for the magistrate’s denial in the R&R[.]” ECF No. 5. We treat
this filing as “Objections”. Pursuant to the prisoner mail box rule, we find the Objections to be
timely filed given that Petitioner ostensibly signed the Objections on January 3, 2017. Id. at 22.
Having thoroughly reviewed the Report and the Objections, we find that the Objections
do not merit the rejection of the Report or extended comment.
The Report was clearly correct that a federal district court does not have jurisdiction to
review a state court conviction by means of a writ of error coram nobis. None of the cases that
Petitioner cites to, as supporting a contrary position, do, in fact, offer such support. Petitioner
most heavily relies on Rothman v. United States, 508 F.2d 648 (3d Cir. 1975) and United States
v. Foriano, 319 F.2d 617 (2d Cir. 1963). ECF No. 5 at 12 – 16. Both cases stand for the
unremarkable proposition that federal district courts may review federal convictions by means of
a writ of error coram nobis where the federal sentences for those federal convictions have been
fully served. They offer no support for the proposition that a federal court can review state court
convictions by means of a writ of error coram nobis. In Foriano, the petitioner therein was
challenging a prior federal conviction in the federal district court to avoid an enhancement of his
sentence in a state court proceeding as a repeat offender. Petitioner herein is seeking to
challenge a prior state court conviction to void an enhancement of his federal sentence in federal
court as a repeat offender. As the Report correctly concluded this is a legally significant
difference.
Petitioner also objects to the Report’s conclusion that the Rooker-Feldman doctrine also
bars this Court from reviewing the Pennsylvania Superior Court’s treatment of Petitioner’s
filings in the state courts, determining them to be a Post Conviction Relief Act (“PCRA”)
Petition and dismissing the Petition, now characterized as a PCRA Petition, because Petitioner

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was not in custody pursuant to May 4, 1995 state court convictions. ECF No. 5 at 17 – 19.
Petitioner claims that the Superior Court did not adjudicate his petition in the state courts on the
merits and, therefore, Rooker-Feldman does not bar this Court from reviewing the Superior
Court’s actions. Id. Petitioner is simply wrong.
As the Report correctly noted the Rooker-Feldman doctrine establishes that “lower
federal courts lack subject matter jurisdiction to engage in appellate review of state court
determinations or to evaluate constitutional claims that are ‘inextricably intertwined with the
state court's [decision] in a judicial proceeding.” Thomas v. Miner, 317 F. App’x 113, 114 n.1
(3d Cir. 2008). It is clear that the Superior Court determined that, as a matter of state law,
Petitioner’s filings in the state courts were PCRA petitions. For this Court to determine that such
a re-characterization of his filings in state court and subsequent dismissal thereafter violated
Petitioner’s federal constitutional rights, (which is precisely what Petitioner seeks), is the very
definition of “evaluating constitutional claims that are inextricably intertwined with the state
court’s decision in a judicial proceeding.” See, e.g., ECF No. 5 at 2 (“the Superior Court’s
decision on September 7, 2016 denying his petition for writ of error coram nobis leaves Drake
without any remedy in the state court,” which Petitioner contends violates his right to due
process); id. at 21 (“Petitioner Drake seeks a determination from this District Court for the
Superior Court’s violation of his federal constitutional rights of due process … and also an order
from this court compelling the Superior Court of Pennsylvania to respond to the writ of error
coram nobis… and also compel the Superior Court to respond to the supplement for leave to his
writ of error coram nobis … and voiding the judgment and remanding it back to the Superior
Court.”). Moreover, Petitioner’s reliance on Howlett v. Rose, 496 U.S. 356 (1990), ECF No. 5
at 9 – 10, is not persuasive because Howlett did not alter the Rooker-Feldman doctrine in any

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manner. The United States Supreme Court did not do so because Howett was an exercise of the
United States Supreme Court’s appellate jurisdiction over state courts by writ of certiorari
concerning a question of federal law. Suffice it to say, this Court is not the United States
Supreme Court and possesses no such appellate jurisdiction. Indeed, the Court in Howett, cited
approvingly the following language: “a federal district court cannot entertain an original action
alleging that a state court violated the Constitution by giving effect to an unconstitutional state
statute[.]” Id. at 370 n.16.
Accordingly, after de novo review of the Report and the Objections and the record of this
case, it is hereby ORDERED that the Report is adopted as the opinion of the Court and we
hereby ORDER that the Petition be dismissed. A certificate of appealability is DENIED.

Date: January 23, 2017

cc:

s/Nora Barry Fischer
NORA BARRY FISCHER
UNITED STATES DISTRICT JUDGE

The Honorable Maureen P. Kelly
Chief United States Magistrate Judge

DEANTE DRAKE
05730-087
FCC Allenwood
PO Box 1000
White Deer, PA 17887

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