SMITH v. WINGARD et al

Filing 10

MEMORANDUM OPINION & ORDER dismissing for lack of jurisdiction the 1 Petition for Writ of Habeas Corpus filed by KYLE SMITH. It is also ordered that a Certificate of Appealability is denied. The Clerk is to mark this case closed. Petitioner has thirty (30) days in which to file a notice of appeal. Signed by Magistrate Judge Lisa Pupo Lenihan on February 27, 2018. (kcc)

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

KYLE SMITH,
Petitioner,
v.
TREVOR WINGARD,
Superintendent, and
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE,
Respondents.

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Civil Action No. 15 – 3J

Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION
A. Background
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Petitioner Kyle
Smith (“Petitioner”) on January 5, 2015. The Petition challenges the Pennsylvania Board of
Probation and Parole’s (the “Board”) recalculation of Petitioner’s sentence after his parole was
revoked on November 25, 2013. By the decision of the Board on that date, Petitioner was
recommitted as a convicted parole violator and ordered to serve his unexpired maximum
sentence of 2 to 4 years incarceration for his November 2, 2009 conviction for committing the
crime of firearm not to be carried without a license. 1 The Board recalculated that date to be
November 17, 2014. On November 17, 2014, Petitioner reached the expiration of his maximum
sentence date for the crime of firearm not to be carried without a license and began serving his
new 3 to 6 year sentence of incarceration for the crime of possession with intent to deliver a
Petitioner was released on parole on December 14, 2011, and he was arrested on August 11,
2012, and charged with the crime of possession with intent to deliver a controlled substance.
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controlled substance. As previously stated, he filed his Petition for Writ of Habeas Corpus in
this case on January 5, 2015, and Respondents filed their Answer to the Petition on March 9,
2015. For the following reasons the Petition will be dismissed for lack of jurisdiction.
B. Discussion
Petitioner is no longer in custody for the judgment of sentence that he is challenging and
therefore this Court does not have jurisdiction over his Petition. In this regard, 28 U.S.C. §
2254(a) provides that federal habeas jurisdiction permits the entertaining of “an application for a
writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a) (emphasis added). See also id. § 2254(b) (“An application
for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that … “) (emphasis added). In light of this language,
the Court of Appeals for the Third Circuit has declared that “the sine qua non of federal habeas
corpus jurisdiction is that petitioner be ‘in custody’[.]” United States ex rel. Dessus v.
Commonwealth of Pennsylvania, 452 F.2d 557, 559-60 (3d Cir. 1971). It explained:
The sole justification of federal habeas jurisdiction for a state prisoner is the
statutory mandate that the applicant be a “person in custody pursuant to the
judgment of a State court.” 28 U.S.C. § 2254. Indeed, in the seminal case of Fay
v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), Mr. Justice Brennan
was careful to emphasize: “The jurisdictional prerequisite is not the judgment of
a state court but detention simpliciter.” 372 U.S. at 430, 83 S.Ct. at 844. Thus,
custody is the passport to federal habeas corpus jurisdiction. Without custody,
there is no detention. Without detention, or the possibility thereof, there is no
federal habeas jurisdiction.
Id. at 560 (footnote omitted). See also Brian R. Means, Federal Habeas Manual § 1:3 (June
2012) (“The custody requirement is jurisdictional.”) (citing, inter alia, Maleng v. Cook, 490 U.S.
488, 490 (1989) (per curiam)). The Court of Appeals for the Third Circuit also has explained
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that “[i]n making a custody determination, a court looks to the date that the habeas petition was
filed.” Barry v. Bergen County Probation Dep't, 128 F.3d 152, 159 (3d Cir. 1997). See also
Federal Habeas Manual § 1:4 (“In order to satisfy the custody requirement, the petitioner must be
in custody at the time the petition is filed in federal court.”) (citing Spencer v. Kemna, 523 U.S.
1, 7 (1998)).
With respect to this case, Petitioner finished serving the particular sentence that he is
challenging in his Petition on November 17, 2014 (firearm not to be carried without a license).
He did not, however, file his Petition for Writ of Habeas Corpus until January 5, 2015. At that
point, Petitioner was no longer serving his sentence that he is challenging, but the new 3 to 6
year sentence for possession with intent to deliver. Accordingly, the Court will dismiss the
Petition for lack of jurisdiction because Petitioner was not in custody for the judgment of
sentence he is challenging at the time he filed his Petition.2
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for
appellate review of a district court’s disposition of a habeas petition. 28 U.S.C. § 2253 provides
that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” Moreover, “[w]hen the district court denies a
habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional
claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court
In fact, a phone call to the Pennsylvania Department of Corrections revealed that Petitioner is
no longer incarcerated.
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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying
that standard here, jurists of reason would not find it debatable whether Petitioner was in custody
pursuant to the judgment of sentence he is challenging at the time he filed his Petition in this
case.
Dated: February 27, 2018.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge

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

KYLE SMITH,
Petitioner,
v.
TREVOR WINGARD,
Superintendent, and
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE,
Respondents.

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Civil Action No. 15 – 3J

Magistrate Judge Lisa Pupo Lenihan

ORDER
AND NOW, this 27th day of February, 2018, and for the reasons stated in this Court’s
Memorandum Opinion filed contemporaneously herewith,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus (ECF No. 1) is
dismissed for lack of jurisdiction
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge

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cc: Kyle Smith
JE-5772
SCI Somerset
1600 Walters Mill Road
Somerset, PA 15510
Counsel for Respondents
(Via CM/ECF Electronic Mail)

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