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Spence v. Venango County Court of Common Pleas

United States District Court, W.D. Pennsylvania

July 3, 2014

GREGORY RICHARD SPENCE, Petitioner,
v.
VENANGO COUNTY COURT OF COMMON PLEAS, Respondent.

OPINION AND ORDER[1]

SUSAN PARADISE BAXTER, Magistrate Judge.

Before the Court is a petition for a writ of habeas corpus filed by Gregory Richard Spence pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the petition is dismissed and a certificate of appealability is denied.

A. Relevant Background

Spence, who currently is on bail, is facing trial before the Court of Common Pleas of Venango County for: Count One, violating 75 Pa.C.S. § 3802(c) (Driving Under the Influence of Alcohol - Highest Rate of Alcohol); Count Two, violating 75 Pa.C.S. § 3802(a)(1) (Driving Under the Influence of Alcohol or Controlled Substance - General Impairment); and Count Three, violating 75 Pa.C.S. § 3714 (Careless Driving). He filed with the Court of Common Pleas a pre-trial motion in which he contended that he was entitled to be tried by a jury on Count One pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Sections Six and Nine of the Pennsylvania Constitution. [ECF No. 14-1 at 1-2]. The Court of Common Pleas denied his motion. It held:

Defendant asserts that because the DUI charge at Count 1 places him in jeopardy of significant administrative and financial penalties over and beyond the possible jail term he is entitled to a jury trial under the Pennsylvania and Federal Constitutions.
This issue has been squarely addressed by the Superior Court in Commonwealth v. Kerry , 906 A.2d 1237 (Pa.Super. 2006). There, the court stated that "by setting the maximum authorized prison term at six months, the Legislature categorized the violation of § 3802(a)(1) as petty for purposes of a defendant's jury trial rights." Id . at 1239. Defendant is charged under § 3802(c) at Count 1; however, similar to § 3802(a)(1), the maximum penalty for a violation of this provision is set forth at 75 Pa.C.S. § 3803(b)(2), which provides:
An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has no prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section 3804. [Emphasis added].
Thus, having set the maximum term of imprisonment at six months, the legislature has clearly made the determination that a violation of § 3802(b) falls into the category of "petty" offenses, for which no right to a jury trial exists. Moreover, the existence of fines and administrative penalties beyond the jail term itself does not change our analysis. The Superior Court has made clear in Kerry that the six month maximum jail term is a bright line beneath which no right to a jury trial exists. Defendant offers not a single Pennsylvania authority which suggests a different conclusion, and counsel's personal conclusions as to the merit of the Superior Court's reasoning are no substitute for binding precedent.

[ECF No. 14-1 at 8-9].

Because the Court of Common Pleas' order denying the motion for a jury trial was interlocutory, it was not immediately appealable. Spence asked the court to amend its order to include language stating the importance of the question involved. According to Spence, if the court had granted his request, he could have filed a Petition for Permission to Appeal under Chapter 13 of the Pennsylvania Rules of Appellate Procedure. The Court of Common Pleas denied his request and, therefore, Spence's option was to file a Petition for Review under Chapter 15 of the Pennsylvania Rules of Appellate Procedure, which he submitted to the Superior Court of Pennsylvania. That court issued a one-sentence denial of the petition. Spence then filed a Petition for Review with the Supreme Court of Pennsylvania, which denied it in a one-sentence order. [ECF No. 14-2 at 1-22].

Spence next filed with this Court his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [ECF No. 1]. He names as Respondent the Court of Common Pleas. Spence seeks an order from this Court declaring that he is being held in custody in violation of the Sixth and Fourteenth Amendments; that he is charged at Count One with a serious criminal offense to which the right to a jury trial attaches; and, that the Court of Common Pleas must either grant him a trial by jury on Count One or release him from custody on that count. [ECF No. 1 at 4].

Spence has filed supplemental briefing [ECF Nos. 14 and 17], and Respondent[2] has filed its response [ECF No. 15 and 18].

B. Discussion

"For state prisoners, federal habeas corpus is substantially a post-conviction remedy." Moore v. DeYoung , 515 F.2d 437, 441 (3d Cir. 1975) (citing Peyton v. Rowe , 391 U.S. 54, 50 (1967) and 28 U.S.C. § 2254). After a state prisoner has been convicted, sentenced, and has exhausted his remedies in the state courts, he may seek federal habeas relief pursuant to 28 U.S.C. § 2254, which is the federal habeas statute applicable to state prisoners "in custody pursuant to the judgment of a State court[.]" 28 U.S.C. § 2254(a). While § 2254 applies to post-trial situations, the more general habeas corpus statute of 28 U.S.C. § 2241 does provide federal courts with jurisdiction to issue a writ of habeas corpus before a state judgment is rendered, but only in very limited circumstances. Brian R. Means, Federal Habeas Manual § 9C:2 (2014), available at Westlaw FEDHABMAN ("If... the petitioner is in custody pursuant to something other than a judgment of a state court (e.g., pre-trial detention, pre-trial bond order, awaiting extradition, he may proceed under 28 U.S.C.A. § 2241.") (emphasis in original). ...


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