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Kimberly v. Giroux

United States District Court, W.D. Pennsylvania

March 6, 2014

KEVIN RICHARD KIMBERLY, Petitioner,
v.
SUPERINTENDENT GIROUX, et al., Respondents.

REPORT and RECOMMENDATION

ROBERT C. MITCHELL, Magistrate Judge.

I. Recommendation:

It is respectfully recommended that the petition of Kevin Richard Kimberly for a writ of habeas corpus be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.

II. Report:

At the time the instant petition was executed, July 18, 2013, Kimberly was incarcerated at the State Correctional Institution at Albion following his conviction by a jury of manufacturing, delivery and possession with intent to manufacture or deliver controlled substances at Nos. CP-26-CR-225-2008 and CP-26-CR-226-2008 in the Court of Common Pleas of Fayette County, Pennsylvania. On April 14, 2010 he was sentenced to nine to twenty-four months and a consecutive term of twelve to twenty-four months.[1] At petitioner's request, the petition was held in abeyance and administratively closed on August 7, 2013 so that he could complete the exhaustion of his state court remedies (ECF 1-3, 5)[2]. At the time of filing his request, petitioner represented that his maximum sentence was scheduled to expire on September 30, 2013 (ECF 1-3). On October 2, 2013, the post-conviction petition was dismissed as moot due to "def[endant] having served the maximum period of sentence imposed on him by this court on April 14, 2010."[3] On November 29, 2013, petitioner notified the court that he was residing at a street address (ECF 7) and on December 2, 2103, his motion to reopen the case was granted. In his petition here Kimberly contends he is entitled to relief on the following grounds:

1. Denial of speedy trial.
2. Ineffective trial counsel.[4]
It is provided in 28 U.S.C. ยง2254(b) that:
An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

Thus, the initial requirement is that a petitioner be "in custody." In Lackawanna County District Attorney v. Coss , 532 U.S. 394, 401 (2001) the Court held that where an individual is no longer serving a sentence he cannot bring a federal habeas challenge to that conviction. However, while there is no question that Kimberly was in custody when he initially filed here, the issue is one of mootness, since there is no relief we can grant to cure the alleged deficits in his prosecution. DeFoy v. McCullough , 393 F.3d 439, 441 (3d Cir.2005), cert. denied 545 U.S. 1119 (2005)("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"). For this reason, the petition is subject to dismissal here.

Nevertheless, even if this was not the case, the petitioner's allegations are without merit.

His first substantive issue is that he was denied a speedy trial. The chronology of events is fully set forth in the trial court's February 18, 2011 Opinion (Respondent's Exhibit 12):

Following the filing of the complaints [February 15, 2007 and March 8, 2007]... members of the Fayette County Drug Task Force on numerous occasions attempted to locate the defendant and to arrest him... Despite the efforts of the officers to locate the defendant an arrest was not effectuated until August 27, 2007....
[A] preliminary hearing was scheduled... for January 2, 2008 at which time the defendant appeared without counsel. The preliminary hearing was continued... to afford the ...

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