The opinion of the court was delivered by: Judge Vanaskie
On February 21, 2006, Michael J. Ascenzi, an inmate at the Retreat State Correctional Institution ("SCI-Retreat"), Hunlock Creek, Pennsylvania, filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Named as respondents are Charles Erickson, the Superintendent at SCI-Retreat, and the Attorney General of the Commonwealth of Pennsylvania. Ascenzi challenges a 2002 Luzerne County Court of Common Pleas conviction for criminal trespass, a summary offense, for which the Court imposed a $100.00 fine, plus costs and restitution.
Having thoroughly reviewed Petitioner's submissions, and the Respondents' response, I will dismiss the Petition for lack of jurisdiction since Petitioner was not "in custody"as a consequence of the summary offense at the time he filed his habeas petition as required by 28 U.S.C. § 2254. Moreover, he is not subject to any collateral consequences from the summary offense conviction sufficient to warrant exercise of jurisdiction, even if he had been in custody as a result of that conviction when this proceeding was brought.
On February 6, 1997, Ascenzi was convicted in the Luzerne County Court of Common Pleas for various drug related offenses. He received a 4 1/2 to 10 year sentence for that conviction. He was paroled on June 29, 2001.
While on parole, Petitioner was arrested on October 24, 2001, for receiving stolen property and criminal trespass. (Doc. 8, Petitioner's Memorandum in Support of his Petition). On September 12, 2002, the state trial court judge dismissed the receiving stolen property charge, and reduced the misdemeanor criminal trespass charge to a summary offense. Following a non-jury trial, Ascenzi was convicted of trespass and ordered to pay a fine of one hundred ($100) dollars, plus costs and restitution.
Ascenzi did not receive a jail sentence for this conviction. Nor did the court impose any period of probation. However, the Pennsylvania Board of Probation and Parole lodged a detainer against him and eventually recommitted him as a convicted parole violator on January 1, 2003, resulting in the loss of approximately 95 days of Petitioner's street time. (Id.) The consequence of the loss of street time is that the maximum date on his 1997 sentence was extended.*fn1
Ascenzi appealed the summary offense conviction to the Pennsylvania Superior Court, which affirmed the conviction. Commonwealth v. Ascenzi, 1710 MDA 02 (Superior Court)(July 23, 2003). On November 17, 2005, the Pennsylvania Supreme Court denied Ascenzi's petition for allocatur. Commonwealth v. Ascenzi, 889 A.2d 87, 585 Pa. 694 (Pa. Super. 2005)(table).
On February 21, 2006, Petitioner filed the instant § 2254 Petition seeking an order either vacating his criminal trespass conviction or remanding the matter for a new trial. Ascenzi asserted the following grounds for relief: (1) ineffective assistance of trial counsel; (2) failure of the trial judge to recuse himself; (3) denial of the right to a trial by jury; (4) use of perjured testimony by the prosecutor; (5) use of evidence obtained pursuant to an unlawful arrest; (6) improper admission of Petitioner's prior conviction at trial; and (7) insufficiency of the evidence. Recognizing that the summary offense conviction did not result in any sentence of confinement or other restraint on liberty sufficient to confer jurisdiction for a habeas corpus challenge to the conviction, Ascenzi suggests that a decision setting aside the summary offense conviction will enable him to restore the forfeited street time, thereby shortening the period of time covered by the original criminal justice sentence.
There have been a number of other developments, however, that bear on his quest to challenge in federal court a conviction that otherwise may not be the subject of a proceeding under 28 U.S.C. § 2254. First, on September 22, 2003, Ascenzi was paroled on the reincarceration that resulted from the summary offense. On December 20, 2004, after testing positive for the presence of opiates, Ascenzi was recommitted as a technical parole violator. He was also arrested on new drug charges. It is undisputed that on May 23, 2005, following a plea of guilty, Ascenzi was sentenced to two (2) to four (4) years for this new criminal conduct.*fn2
In order to obtain habeas corpus relief from a state court conviction, a petitioner must be "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "Custody" is defined not only as physical confinement, but also includes circumstances entailing such limitations on a person's liberty as those imposed during parole. See Maleng v. Cook, 490 U.S. 488, 491 (1989). This requires that, at the time his habeas petition is filed, the petitioner must be "in custody" pursuant to the conviction or sentence he seeks to attack. Young v. Vaughn, 83 F.3d 72, 73 (3d Cir.1996). A petitioner on probation or parole for the conviction he seeks to attack satisfies the "in custody" requirement for purposes of the habeas statute. Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004)(quoting Maleng v. Cook, 490 U.S. at 490-91). However, a habeas petitioner is not "in custody" under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. See Maleng, 490 U.S. at 491.
Collateral consequences of a conviction, such as the obligation to pay "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 v. State of New Jersey, 328 F.3d 716, 718 (3d Cir. 2003). This is because the writ of habeas corpus functions primarily to secure immediate relief from illegal physical custody. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Where a petitioner suffers no present restraint resulting from an expired conviction, he is not "in custody" for the purposes of invoking federal habeas jurisdiction to challenge that conviction. Maleng, 490 U.S. at 492. "[C]ustody is the passport to federal habeas corpus jurisdiction. Without ...