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John Hart v. Pennsylvania Board of Probation & Parole

March 8, 2011

JOHN HART,
v.
PENNSYLVANIA BOARD OF PROBATION & PAROLE, ET AL.



The opinion of the court was delivered by: Norma L. Shapiro, J.

MEMORANDUM

I. Introduction

Before the court is a habeas corpus petition filed under 28 U.S.C. § 2254 by pro se petitioner John A. Hart ("petitioner"). The Honorable Carol Sandra Moore Wells, United States Magistrate Judge ("Magistrate Judge"), filed a Report and Recommendation ("R&R") that the habeas petition be dismissed as second or successive. For the reasons that follow, the petition will be dismissed for lack of jurisdiction because petitioner is no longer in custody.

II. Background

On May 12, 2003, petitioner pled nolo contendere to several offenses in the Delaware County Court of Common Pleas. See Commonwealth v. Hart, No. 1426 EDA 2004, *1 (Pa. Super. Ct. May 16, 2005) ("Hart I"); Commonwealth v. Hart, No. 1496 EDA 2006, at *1 (Pa. Super. Ct. Mar. 21, 2007) ("Hart II"). In Delaware County Docket Number 4696-02, petitioner pled nolo contendere to stalking and terroristic threats stemming from a series of incidents involving his former girlfriend, Amanda Smothers ("Smothers"). Hart II, at *1. In Docket Number 5645-02, petitioner pled nolo contendere to defiant trespass in relation to another incident involving Smothers. Id. In Docket Number 685-03, petitioner pled nolo contendere to two additional counts of stalking Smothers. Id. at 1-2. Docket Number 5713-02 was nolle prossed by the Commonwealth. See Commonwealth v. Hart, Nos. 4696-02, 5645-02, 5713-02, 685-03, at *4 (Del. Cty. Ct. of Common Pleas May 10, 2006) ("Hart III").

After accepting petitioner's plea, the trial court sentenced him to time served to twelve months' imprisonment for defiant trespass and concurrent terms of time served to twenty-three months' imprisonment and time served to twenty-four months' imprisonment less one day for stalking and terroristic threats. Id. at 2. The court also imposed twenty-four months' probation for stalking, consecutive to the terms of confinement. Id. Petitioner was immediately paroled and released from the correctional facility.

Three weeks later, petitioner was arrested on charges of harassing his new paramour, Courtney Davis ("Davis"), and incarcerated in Delaware County Prison. Hart I, at *1. On June 4, 2003, while in custody on these most recent charges, petitioner was served with two warrants for allegedly contacting Smothers by telephone on May 31, 2003, a violation of his earlier probation terms. Id. On June 10, 2003, Delaware County Adult Probation Officer Dawn Clark requested two detainers be lodged against petitioner based upon the criminal charges filed by Davis. Id. at 2. The District Attorney requested an additional detainer be lodged against petitioner for violating a condition of his probation. Id.

On June 26, 2003, the Magisterial District Court held a preliminary hearing on Davis' allegations, and held the charges over for trial. Hart I, at *2. On December 5, 2003, following a jury trial in the Delaware County Court of Common Pleas, petitioner was acquitted of all charges involving Davis. Id.

On December 17, 2003, petitioner filed a habeas corpus petition in Pennsylvania state court seeking to have his detainers lifted. Hart I, at *2. At a hearing held on December 22, 2003, the Commonwealth gave petitioner notice of its intent to proceed with a Gagnon II*fn1 hearing based upon a technical violation of the terms of petitioner's probation for his alleged contacts with Smothers on May 31, 2003. The court dismissed the habeas petition and scheduled a Gagnon II hearing for February 9, 2004. Hart I, at *2-3.

At the February 9, 2004 hearing, the court determined petitioner violated his probation for Docket Numbers 4696-02 and 685-03. The court re-imposed his back time on those two cases and granted immediate parole. Hart II, at *2. As the one-year sentence imposed in Docket Number 5645-02 had previously expired, that conviction was not included in the revocation proceeding. Id. On March 10, 2004, petitioner filed a notice of appeal from the revocation sentence to the Superior Court. Id. While that appeal was pending, petitioner filed - on May 11, 2004 - a Post-Conviction Relief Act ("PCRA") petition; the PCRA court held the petition in abeyance until the parole revocation appeal was resolved. Id. On May 16, 2005, the Pennsylvania Superior Court affirmed the revocation sentence. Id. On August 22, 2005, the Pennsylvania Supreme Court denied a petition for allocatur. Hart v. Cty. Of Delaware Office of Probation & Parole, No. 07-4839, at *4. (E.D. Pa. Mar. 27, 2008) ("Hart IV").

On May 10, 2006, the PCRA court denied petitioner relief on Docket Numbers 4696-02, 5645-02 and 5713-02, because he was no longer eligible for post-conviction relief pursuant to 42 Pa. Cons. Stat. Ann. § 9543(1)(i), which requires a petitioner to be currently serving a sentence. See Hart III, at *4. The PCRA court concluded that petitioner's post-conviction claims regarding the remaining stalking convictions, listed at Docket Number 685-03, did not warrant relief. Id at 4-13. On June 2, 2006, petitioner filed a timely pro se appeal to the Pennsylvania Superior Court. Hart II, at *2.

On March 21, 2007, the Superior Court, affirming the PCRA court's denial of relief, agreed that petitioner was ineligible for relief on Docket Numbers 4696-02 and 5645-02 because those sentences had previously expired. Id. at 4, 6. The court also found 42 Pa. Cons. Stat. Ann. § 9543(1)(I) precluded PCRA relief for the matter charged in Docket Number 685-03, because it expired on January 11, 2007,. Id. On October 16, 2007, the Pennsylvania Supreme Court denied a petition for allocatur. See Hart IV.

On November 16, 2007, petitioner filed a federal habeas corpus petition. Civil Action No. 07-4839. Petitioner challenged his state convictions in Docket Numbers 5645-02, 4696-02. 685-03 and 5712-02. See Hart v. Cnty. of Delaware Office of Probation & Parole, 2008 WL 1847698 (E.D. Pa. Apr. 24, 2008). He raised claims of ineffective assistance of counsel, unlawfully induced plea and denial of a speedy hearing. Id. at *1. This court denied petitioner's habeas claim because he was not in custody pursuant to 28 U.S.C. § 2254(a) when his petition was filed. Id. at *4.

By order dated June 23, 2008, this court vacated its April 24 order to allow petitioner time to file objections. See Hart v. Cnty. of Delaware Office of Probation & Parole, 2008 WL 4646144 (E.D. Pa. Oct. 17, 2008). This court found the Magistrate Judge failed to consider the collateral consequences doctrine exception to Section 2254(a)'s custody requirement. Id. at *1. Because the exception was unavailable to petitioner, this ...


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