The opinion of the court was delivered by: JOHN JONES III, District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Petitioner, Andrew W. Stewart ("Petitioner or "Stewart"), an
inmate formerly incarcerated at the Centre County Prison, filed
the above-captioned petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 ("the Petition"). (Rec. Doc. 1). Petitioner
has paid the required filing fee. In accordance with United
States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v.
Meyers, 208 F.3d 414 (3d Cir. 2000), an Order was issued
advising the Petitioner that: (1) he could have the document
ruled on as filed, that is, as a § 2254 petition for writ of
habeas corpus and heard as such, but lose his ability to file a
second or successive petition absent certification by the court
of appeals, or (2) withdraw his petition and file one,
all-inclusive § 2254 petition within the one-year statute of limitations period prescribed by
28 U.S.C. § 2244(d). (Rec. Doc. 5). Stewart responded by submitting
a Notice of Election on July 29, 2004, in which he opted to have
his petition considered as filed. (Rec. Doc. 6). Thereafter, the
Court issued an Order to show cause, directing Respondent to
respond to the petition. (Rec. Doc. 7). On September 16, 2004,
Respondent filed an answer to the petition, and supporting
memorandum and exhibits. (Rec. Docs. 14-16). No traverse has been
filed. The Petition is presently ripe for disposition and, for
the reasons that follow, the Petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 4, 1995, after a jury trial, Stewart was convicted of
two counts of insurance fraud, one count of receiving stolen
property, one count of theft by deception, and one count of
criminal attempt to commit theft. (Rec. Doc. 16, Ex. C, Verdict
Slip). On July 7, 1995, Stewart was sentenced to two concurrent
terms of incarceration of eleven and one-half to twenty-three and
one-half months. (Rec. Doc. 16 Exs. D, E, Sentencing Orders).
Stewart filed a post-sentence motion and a motion for
reconsideration of sentence, which were denied by the trial court
in an Order dated November 30, 1995. (Rec. Doc. 16, Ex. G,
Opinion in Support of Order dated November 30, 1995). On December 28, 1995, Stewart filed a direct appeal to the
Pennsylvania Superior Court, from the denial of his motion for a
new trial. He raised the following grounds for relief:
(1) The trial court erred in overruling Defendant's
trial counsel's objection to the introduction of
certain evidence and testimony.
(2) The trial court err when it failed to grant the
Defendant an evidentiary hearing to determine if his
post-trial motions regarding ineffectiveness of
counsel were of merit.
(3) The Defendant was denied his constitutional right
to testify either because of trial court error or
ineffective assistance of counsel.
(Rec. Doc. 16, Ex. H, Opinion of Superior Court). By Memorandum
Opinion dated December 19, 1997, the Pennsylvania Superior Court
affirmed the judgment of sentence, but also ruled that the
ineffective assistance of counsel claims had arguable merit and
remanded the case for an evidentiary hearing on these claims.
(Rec. Doc. 16, Ex. H, Opinion of Superior Court); See
Commonwealth v. Stewart, 706 A.2d 1259 (Pa. Super 1997)
(unpublished memorandum). On July 24, 1998, the Pennsylvania
Supreme Court denied Stewart's petition for allowance of appeal.
See Commonwealth v. Stewart, 725 A.2d 1220
On October 9, 1998, the trial court held an evidentiary hearing
on Stewart's two ineffective assistance of counsel claims raised
in his direct appeal. On June 23, 1999, the trial court issued an Opinion and Order, denying Stewart's
motion for new trial based on claims of ineffective assistance of
counsel, (Rec. Doc. 16, Ex. J). On July 20, 1999, Stewart filed a
direct appeal to the Pennsylvania Superior Court from the trial
court's denial of his ineffective assistance of counsel claims.
By Memorandum Opinion dated August 30, 2000, the Pennsylvania
Superior Court affirmed the trial court's decision. See
Commonwealth v. Stewart, 764 A.2d 1129 (Pa. Super 2000)
(unpublished memorandum); (Rec. Doc. 16, Ex. K). By Order dated
March 15, 2001, the Pennsylvania Supreme Court denied Stewart's
petition for allowance of appeal. Commonwealth v. Stewart,
771 A.2d 1283 (Pa. 2001); (Rec. Doc. 16, Ex. L).
By Order dated April 4, 2001, the trial court ordered Stewart
to commence service of his sentence on May 4, 2001. (Rec. Doc.
16, Ex. M).
On August 21, 2001, Stewart filed a counseled petition under
the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.
Const. Stat. §§ 9541-9546. (Rec. Doc. 16, Ex. N). In his
Petition, Stewart asserted three claims of ineffectiveness of
counsel. (Rec. Doc. 16, Ex. N). Following a hearing, in an
Opinion and Order dated May 29, 2002, the PCRA court dismissed
the Petition as untimely. (Rec. Doc. 16, Ex. Q).
On June 19, 2002, Stewart filed an appeal from the PCRA Court's
dismissal to the Pennsylvania Superior Court. He raised the
following grounds for relief; (1) Did the lower court err in determining that the
PCRA court was untimely filed and dismiss for an
(2) Did the lower court in determining to dismiss the
PCRA as untimely so to ignore established law as to
use of this disposition to cause Andrew Stewart's
sentence of parole to end before an adjudication on
Commonwealth v. Stewart, No. 971 MDA 2002; (Rec. Doc. 16, Ex.,
R, Superior Court Opinion). By Memorandum Opinion dated May 8,
2003, the Pennsylvania Superior Court determined that Stewart's
original judgement of sentence did not become final for PCRA
purposes until June 13, 2001; ninety days after the Pennsylvania
Supreme Court denied allowance of appeal from the Superior
Court's August 30, 2000 Opinion and when the period to file a
petition for writ of certiorari with the United States Supreme
Court expired. (Rec. Doc. 16, Ex. R, p. 6). As a result, the
Court found that Stewart's PCRA petition, filed on August 21,
2001, was timely filed within one year of final judgment. (Rec.
Doc. 16, Ex. R, p. 7). The Superior Court did not address
Stewart's second issue, finding that it had not been initially
advanced before the PCRA Court.*fn1
Thus, the Superior Court
reversed the order of the PCRA Court granting the Commonwealth's motion to
dismiss the PCRA petition as untimely, and remanded the case for
On June 12, 2003, the Commonwealth filed a second motion to
dismiss the PCRA petition, arguing that the Defendant was no
longer eligible for PCRA relief because his sentence had expired
on April 18, 2003 and he is no longer serving a sentence of
imprisonment, probation or parole for the crime. (Rec. Doc. 16,
Ex. S). Defendant conceded to the Commonwealth's position. (Rec.
Doc. 16, Ex. U). By Opinion and Order dated October 27, 2003, the
PCRA court granted the Commonwealth's motion and dismissed
Stewart's PCRA petition. (Rec. Doc. 16, Ex. V). No appeal was
taken from this Order.
On May 3, 2004, Stewart filed the instant Petition for habeas
corpus relief. He asserts the following grounds for relief:
(1) Ineffective assistance of trial and appellate
(2) PCRA Court erroneously dismissed Petitioner's
(Doc. 1, petition). DISCUSSION
For a federal court to have jurisdiction over a habeas petition
brought by a state prisoner pursuant to 28 U.S.C. § 2254 the
state prisoner must show that he is "in custody pursuant to the
judgment of a State court." Lackawanna County Dist. Atty. v.
Coss, 532 U.S. 394, 401 (2001) (quoting 28 U.S.C. § 2254(a)).
While this "in custody" requirement is liberally construed, "a
petitioner must be in custody under the conviction he is
attacking at the time the habeas petition is filed." Obado v.
New Jersey, 328 F.3d 716, 717 (3d Cir. 2003). The Third Circuit
has explained that "[t]he meaning of `custody' has been broadened
so that it is no longer limited in the § 2254(a) context to
physical custody alone but also applies where individuals are
subject both to `significant restraints on liberty . . . which
were not shared by the public generally,' along with `some type
of continuing governmental supervision.'" Id. at 717
(quoting Barry v. Bergen County Probation Dep't 128 F.3d 152,
160 (3d Cir. 1997)). The Third Circuit elaborated in an earlier
decision that "an individual who is required to be in a certain
place or in one of several places to attend meetings or to
perform services, is clearly subject to restraints on his liberty
not shared by the public generally." Barry, 128 F.3d at 161. On
the other hand, the Third Circuit has held that "[t]he payment of
restitution or a fine, absent more, is not the sort of
`significant restraint on liberty' contemplated in the `custody' requirement
of the federal habeas corpus statutes." Obado, 328 F.3d at 718.
Here, at the time Petitioner filed his federal Petition, he was
not incarcerated, on parole, on probation, nor is there an
indication that he was otherwise "required to be in a certain
place-or in one of several places-to attend meetings or to
perform services" as part of his 1995 conviction and sentence
the conviction Stewart now attacks. Thus, the Court cannot
entertain the merits of his federal Petition. Even if Petitioner
were attacking his 1995 conviction and sentence insofar as it was
used to enhance a later sentence for another crime which
Petitioner is now serving, such an attack would be precluded. The
Supreme Court has made clear that "once a state conviction is no
longer open to direct or collateral attack in its own right
because the defendant failed to pursue those remedies while they
were available (or because the defendant did so unsuccessfully),
the conviction may be regarded as conclusively valid. If that