BUXTON v. SCI - MERCER et al

Filing 17

ORDER dismissing Petition for lack of subject matter jurisdiction, denying certificate of appealability, and adopting 15 Report and Recommendation of Chief Magistrate Judge Kelly as the opinion of the Court. The Clerk shall mark this case CLOSED. Signed by Judge David S. Cercone on 8/16/17. (njt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDY BUXTON,
Petitioner,
v.

SCI-MERCER; and THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA,
Respondents.

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Civil Action No. 17-62
Judge David Stewart Cercone/
Chief Magistrate Judge Maureen P. Kelly

ORDER
Andy Buxton ("Petitioner") initiated these proceedings under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody on January 13, 2017. ECF No. 1. Petitioner is
seeking to attack his Driving Under the Influence ("DUI") conviction and related convictions
obtained in the Court of Common Pleas of Allegheny County. Commonwealth v. Buxton, CP-02CR-0008697-2012 (Allegheny County CCP). The case was referred to Chief Magistrate Judge
Maureen Kelly in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(l), 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 for lack of jurisdiction because all custody stemming
from the convictions that he challenged herein had long since ceased at the time that Petitioner
initiated these proceedings. ECF No. 15. The Report was served upon Petitioner at his address of
record and he was informed that he could file Objections to the Report. Petitioner filed his timely
Objections on August 8, 2017. ECF No. 16. Those Objections do not merit rejection of the
Report and Recommendation.
Petitioner seemingly contends that he is in custody for the DUI convictions that he seeks to
attack herein because he suffers collateral consequences from those convictions. However,

"collateral consequences" stemming from a conviction do not render the person "in custody" for
purposes of habeas corpus. Williams v. D.A. of Allegheny County No. Civ. A. 10-353, 2010 WL
4388073 (W.D. Pa. Oct. 29, 2010) ("While collateral consequences of a conviction can prevent a
habeas case from becoming moot if the habeas petitioner is released from custody while his
petition is still pending, collateral consequences alone will not satisfy the jurisdictional 'in
custody' requirement. Maleng, 490 U.S. at 492 ('the collateral consequences of [a] conviction are
not themselves sufficient to render an individual 'in custody' for the purposes of a habeas attack
upon it'). If the petitioner is not 'in custody' when he files his petition, any still-remaining
collateral consequences of his conviction alone will not satisfy the jurisdictional 'in custody'
requirement.").
Accordingly, after de novo review of the Report and Recommendation as well as 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 for lack of subject
matter jurisdiction because, when Petitioner initiated these proceedings, he was no longer in
custody pursuant to the DUI convictions that he sought to attack via this habeas petition. Because
jurists of reason would not find this disposition debatable a certificate of appealability is

DENIED. 1
Date: August,,, 2017
David Stewart Cercone
United States District Judge
1

Although the Objections are not entirely clear on this point, to the extent that Petitioner seeks to
attack in his Objections his current conviction/sentence as having been unconstitutionally
enhanced by the DUI conviction he attacks herein, he may do so by filing a Section 2254 Petition
in this Court attacking the currently served sentence. But he may only do so on the ground that his
previously served DUI conviction was obtained in a proceeding where there was a failure to
appoint counsel in violation of the Sixth Amendment. Lackawanna County District Atty. v. Coss,
532 U.S. 394 (2001).

cc:

The Honorable Maureen P. Kelly
Chief United States Magistrate Judge
Andy Buxton
MS1885
SCI Mercer
801 Butler Pike
Mercer, PA 16137
(Via First Class Mail)