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October 17, 2005.


The opinion of the court was delivered by: THOMAS BLEWITT, Magistrate Judge


I. Background.

On January 7, 2004, the government filed an Information in which Defendant, Vernon Griffith, was charged with possession of a controlled substance (i.e. cocaine base), a misdemeanor offense, in violation of 21 U.S.C. § 844. On January 14, 2004, Defendant consented to proceed before the undersigned, and Defendant waived the reading of the Information and pled guilty to the stated charge. (Docs. 7-9). The Court ordered a Presentence Investigation Report, and sentencing was scheduled for April 8, 2004. On April 8, 2004, the Court denied Defendant`s Objections to the Presentence Investigation Report and sentenced Defendant to time served, $25 special assessment, and supervision for one year, commencing immediately. Defendant was advised of his right to appeal his sentence. (Doc. 14). Significantly, Defendant did not appeal his sentence. Thereafter, Defendant was charged with violating the terms of his supervised release. At the Rule 5 hearing held on December 16, 2004 with respect to the supervise release violations, Defendant waived his preliminary examination and detention hearing and admitted to the violations. The Court then sentenced Defendant on December 21, 2004 to three (3) months imprisonment with no supervised release. (Docs. 17 & 21).

  On May 19, 2005, after fully serving his sentence and after the period of supervision had expired, Defendant, pro se, filed a Motion to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 22). Defendant, after being granted an extension of time, filed a support Brief on August 30, 2005. (Doc. 27). On September 20, 2005, the Government responded to Defendant`s motion by filing a Motion to Stay the Briefing schedule with respect to Defendant`s § 2255 Motion and a Motion to Dismiss Defendant`s Motion, along with a support Brief. (Docs. 29 & 30). To date, Defendant has not responded to the Government's Motion to Dismiss, and the time period within which he was required to do so has lapsed.*fn1

  Defendant argues that he was not informed by his counsel of the "devastating" immigration consequences of his guilty plea and, thus, claims that his guilty plea was not made knowingly and voluntarily. (Doc. 22, p. 7). Defendant seemingly states that, as a result of his guilty plea, he has been detained by immigration officials (at York County Prison ("YCP")) for removal proceedings. Defendant seeks to vacate his conviction. Defendant is deemed as asserting the collateral consequences exception to the in custody requirement of a § 2255 motion. Defendant also argues that the AEDPA's one-year statute of limitations period for filing a § 2255 motion should be tolled until he discovered the relevant facts supporting is claims. (Doc. 22, pp. 8-10, 12). The Government argues that Defendant is no longer in custody on the sentence which he is seeking to vacate and was not in custody when Defendant filed his Motion.*fn2

  In his support Brief, Defendant states that his deportation is "imminent," according to the Bureau of Immigration and Customs Enforcement ("BICE"). (Doc. 27, p. 1).*fn3 We cannot discern from Defendant's filings if a final removal order has been entered against him and if he has exhausted his remedies with respect to a final removal order. See 8 U.S.C. § 1252(d).*fn4

  While incarcerated at the York County, Pennsylvania, Prison, Defendant filed the instant Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255, challenging his April 8, 2004 simple possession conviction in this Court. Defendant admitted guilt to the stated offense and he was sentenced to time served. Also, at that time, Defendant was immediately placed on supervision for one year. (Doc. 14). Defendant`s supervised release was revoked by the Court on December 21, 2004, and he was sentenced to three (3) months incarceration with no supervision upon release. (Doc. 21). As the Government correctly states, when Defendant filed his present Motion, both his original sentence and his subsequent sentence of three months imprisonment were fully served. (Doc. 30, p. 2). Defendant did not appeal either of his sentences, notwithstanding the Court having advised him of his rights to do so. The Government now argues that, since Defendant was not in custody on either of his sentences when he filed his Motion, nor was he under supervision, this Court lacks jurisdiction. We agree with the Government.

  Defendant challenges his drug conviction based on his claim that, during the court proceedings, he was not advised by his counsel of the consequences his guilty plea would have on subsequent immigration proceedings. Defendant contends that his sentence should be vacated since he was not informed that a removal proceeding against him would be a consequence of his plea. Defendant`s sentences imposed by this Court are no longer subject to direct appeal since he failed to pursue these remedies while they were available. Defendant states that he has been subjected to collateral consequences from his guilty plea in the nature of BICE's detainment of him and commencement of removal proceedings against him. The Court agrees with the Government and finds that Defendant was not in custody on his present conviction when he filed his § 2255 motion.

  II. Discussion.

  A. In Custody

  The issues that Defendant is presently raising in his Motion are: (1) whether the evidence was insufficient that he was guilty of possessing crack cocaine when he was really only guilty of using marijuana;*fn5 (2) whether he was innocent of the cocaine base possession conviction; and (3) whether his counsel (trial) was ineffective for not advising him that his deportation following his plea would be "unavoidable," rendering his plea as invalid since it was not knowingly made (Doc. 27).*fn6 However, as the Government contends, Defendant has to be considered "in custody" on his drug conviction in order to attack his guilty plea in its entirety. (Doc. 30, pp. 2-4). We find that to be `in custody' for purposes of Section 2255, Defendant must be in physical custody under the challenged conviction at the time the motion was filed or still under supervision as a result of the conviction. Thus, we determine that Defendant does not meet the in custody requirements under § 2255 on his 2004 drug conviction.

  In Eakman, supra at 297, the Court stated that § 2255 is limited to challenges to the validity of a Defendant`s current federal sentence. Here, Defendant challenges the validity of his guilty plea. He also claims in his Brief that his sentence was excessive. (Doc. 27, 6th to last page). However, Defendant was no longer serving his 2004 sentence he seeks to challenge when he filed his § 2255 Motion. Further, Defendant does not claim that his undisputed expired 2004 sentence this court imposed was used to enhance any subsequent sentence being served at YCP or at any other prison. In U.S. v. Hill, 1997 WL 703011 * 2 (E.D. Pa.), the Court held that § 2255 allows an inmate in custody under a federal sentence to move the court to correct an erroneous sentence. As stated, our Defendant was no longer in custody on his 2004 sentence when he moved to vacate it under § 2255. Since, as discussed below, this Court lacks jurisdiction with respect to Defendant`s § 2255 Motion, we conclude that Defendant is not entitled to relief under § 2255. Therefore, we have not held any hearing, nor have we made findings of fact and conclusions of law. See Eakman, supra at 297.

  Recently, the Third Circuit Court of Appeals in Defoy v. McCullough, 393 F.3d 439, 441-442 (3d Cir. 2005), stated as follows:
A prisoner may seek federal habeas relief only if he is in custody in violation of the constitution or federal law. 28 U.S.C. § 2254(a). Moreover, a petition for habeas corpus relief generally becomes moot when a prisoner is released from custody before the court has addressed the merits of the petition. Lane v. Williams, 455 U.S. 624, 631 (1982). This general principle derives from the case or controversy requirement of Article II of the Constitution, which "subsists through all stages of federal judicial proceedings, trial and appellate . . . the parties must continue to have a personal stake in the outcome of the lawsuit." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990) (internal citations and quotations omitted). In other words, throughout the litigation, the plaintiff "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. at 477; see also Maleng v. Cook, 490 U.S. 488, 492 (1989) (holding that habeas petitioner does not remain "in custody" after the sentence imposed has fully expired merely because of the possibility that the prior conviction will be used to enhance sentences imposed for any subsequent crimes of which he is convicted); United States v. Romera-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (holding that prisoner's motion to vacate his conviction was not mooted when he was released from custody, where he faced potential deportation as a collateral consequence of conviction).*fn7
The Defoy Court also noted that there is a narrow exception to the general mootness rule, namely the collateral consequences doctrine. The Court explained:
The doctrine of collateral consequences applies where a former prisoner can demonstrate he will suffer some collateral consequences if his conviction is allowed to stand. See Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968); Chong v. Dist. Dir., INS, 264 F.3d 378, 384 (3d Cir. 2001). It is a petitioner's burden to demonstrate that collateral consequences exist to avoid having a case dismissed as moot. United States v. Kissinger, 309 F.3d 179, 181 (3d Cir. 2002). The Supreme Court has held that the length of a term of supervised release cannot be reduced "by reason of excess time served in prison." United States v. Johnson, 529 U.S. 53, 60 (2000). Requiring DeFoy to admit his guilt after having consistently denied it may have the collateral consequences of his being indicted for perjury. Therefore, even if DeFoy had already been released from prison, the collateral consequences doctrine would prevent the issue from being moot.
Id. at 442, n. 3.

  The Government states that Defendant was no longer in custody with respect to his 2004 judgment he is seeking to attack when he filed his present Motion. The Government does not argue that Defendant`s Motion is moot due to his release from custody, but argues that Defendant did not meet the in custody requirement because he did not file his § 2255 Motion before his sentence fully expired. (Doc. 30, n. 1, pp. 3-4). We find this distinction by the ...

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