United States District Court, W.D. Pennsylvania
LISA PUPO LENIHAN, Magistrate Judge.
John Anthony Mongeluzzo ("Petitioner") has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition indicates that he is challenging his judgments of sentence at CP-26-CR-356, 357, 358, 359, 360, 361 of 2003 out of the Court of Common Pleas of Fayette County. The relevant history of these cases, as set forth by the Court of Common Pleas in its Opinion dated June 9, 2010, is as follows:
On April 1, 2004, following a bench trial, [Petitioner] was convicted of five misdemeanor counts of criminal mischief and the summary offenses of criminal mischief, harassment and disorderly conduct. The Court sentenced [Petitioner] to an aggregate term of state imprisonment of not less than three (3) months nor more than thirty-six (36) months. Additionally, [Petitioner] was sentenced to a consecutive term of probation for three and one-half (3 ½) years.
[Petitioner] was convicted of criminal mischief (M-2) at 356 for using a crossbow or slingshot to break windows and damage vinyl siding on September 15, 2002 and sentenced to pay a $500.00 deductible to Sue Harshman, who is the sister of [Petitioner]'s estranged wife, restitution of $835.76 to State Farm Insurance and imprisonment of one (1) to twelve (12) months, consecutive; of criminal mischief (M-2) at 357 for using his crossbow or slingshot to break windows on September 21, 2002 and sentenced to pay restitution of $592.23 to Cathy Harshman-Mongeluzzo (his estranged wife), restitution of $1, 037.64 to State Farm Insurance, and imprisonment of one (1) to twelve (12) months, consecutive; of criminal mischief (M-3) at 358 for using his crossbow or slingshot to break windows and damage vinyl siding on September 6-8, 2002 and sentenced to pay restitution of $500.00 to Sue Harshman, restitution of $311.10 to State Farm Insurance, and imprisonment of one (1) to twelve (12) months, consecutive; of criminal mischief (M-2) at 359 for using a crossbow or slingshot to break a large bay window on October 16, 2002. He was sentenced to pay $500.00 in restitution to Sue Harshman, restitution of $2, 349.96 to State Farm Insurance and probation for two (2) years, consecutive; of criminal mischief (M-2) at 361 for using a crossbow or slingshot to again break the large bay window on January 7, 2003 and sentenced to probation for one (1) year, consecutive; of criminal mischief (S) at 477 (NT-12-03) for using a crossbow or slingshot to break a window on November 3, 2002 and sentenced to probation of ninety (90) days, consecutive; of harassment (S) at 477 (NT-13-03) for that same incident and sentenced to probation of ninety days, consecutive; of disorderly conduct (S) at 477 (NT-751-02) for creating a physically offensive condition on October 2, 2002 and sentenced to probation of ninety days, consecutive; of harassment (S) at 477 (NT-10-03) on November 10, 2002 and sentenced to pay a fine; of criminal mischief (S) at 477 (NT-11-03) for using his crossbow or slingshot to break the rear window of a 1997 Ford Explorer belonging to Jeff Kachmarek (boyfriend of his estranged wife's sister) on November 10, 2002 and sentenced to pay a fine; and of harassment (S) at 968 for gesturing with his hand as if pointing a gun and firing it at his estranged wife on April 13, 2003 and sentenced to pay a fine. Fines and costs were also imposed at the above numbers; the other remaining charges incurred no further penalty. Further, while 360 is listed in the caption of the [Petitioner]'s Amended PCRA petition, the Court found him not guilty of three stalking charges presented at that number since the Commonwealth failed to produce a necessary witness at trial. This court ordered [Petitioner] to serve his sentence in the state correctional system.
Attorney Charles Gentile represented [Petitioner] at trial. For his appeal, [Petitioner] obtained new counsel, Attorney Kirk Sohonage (hereinafter Attorney Sohonage) who timely filed post-sentence motions for judgment of acquittal, new trial and modification of sentence. The trial court denied those motions on July 16, 2004. [Petitioner] filed for reconsideration and this court also denied that motion. On August 16, 2004, Attorney Sohonage timely filed a notice of appeal to the Superior Court. The Superior Court vacated the restitution orders at 357, 358 and 359 of 2003 and remanded for further proceedings. The Superior Court affirmed the remaining judgments.
On August 20, 2006, [Petitioner] filed a PCRA petition alleging ineffective assistance of both his trial and appellate counsel, Attorney Gentile and Attorney Sohonage, respectively. On November 30, 2007, [Petitioner] filed an Amended PCRA petition. After numerous continuances, the hearings were held on August 25, 2008 and on April 17, 2009. Additional hearings were anticipated, but this court was recently advised that no such hearings were needed.
(ECF No. 9-6 at pp.1-4, Opinion of the Court of Common Pleas dated June 9, 2010).
Petitioner reported for sentencing on September 8, 2006, and he finished serving the incarceration portion of his sentence on September 8, 2009. Just prior to completing his three year term of probation, however, he was convicted of a misdemeanor theft offense in Westmoreland County and was sentenced to one year of probation. As a result, Petitioner had a probation revocation hearing on March 28, 2012, for Fayette County cases 359, 361 and 477. The judge resentenced him to a new one-year term of probation, to run concurrent with the term of probation he was serving in Westmoreland County. See (ECF No. 9-24, Probation Revocation and Resentencing Proceedings dated March 28, 2012).
Petitioner filed the instant petition for writ of habeas corpus on April 25, 2012, while he was still serving probation for Fayette County cases 359, 361 and 477. However, at the time the petition was filed he had already completed serving his sentences for cases 356, 357, and 358, as he was not sentenced to probation for these convictions.
A federal district court has jurisdiction to entertain an application for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 only if the petitioner is "in custody" pursuant to the state court judgment of sentence he is attacking at the time the application is filed. 28 U.S.C. § 2254; Maleng v. Cook , 490 U.S. 488, 490 (1989); Carafas v. LaVallee , 391 U.S. 234, 238 (1968). See also United States ex rel Wojtycha v. Hopkins , 517 F.2d 420, 423 n.6 (3d Cir. 1975) ("in custody' jurisdictional requirement is determined as of the date the petition is filed in the district court"). However, a prisoner need not be physically confined in order to challenge his sentence on habeas corpus. Maleng , 490 U.S. at 491. For example, the Supreme Court has held that a prisoner placed on parole is still "in custody" under his unexpired sentence because his release from physical confinement was not unconditional. Jones v. Cunningham , 371 U.S. 236, 242 (1963). Relevant herein, the Third Circuit has recognized that a petitioner serving an unexpired term of probation is sufficient to establish the "in custody" jurisdictional requirement. See Lee v. Stickman (357 F.3d 338 , 342 (3d Cir. 2004) (A petitioner on probation or parole for the conviction he seeks to attack satisfied the "in custody" requirement for purposes of the habeas statute) (citing Maleng , 490 U.S. at 490-91). See also United States v. Essig , 10 F.3d 968, 970 n.3 (3d Cir. 1993).
In this case, Petitioner has met the jurisdictional requirement only with respect to Fayette County cases 359, 361 and 477; because, at the time he filed his habeas petition, he was still serving an unexpired sentence of probation on those cases. He was not, however, "in custody" under the convictions for his remaining Fayette County cases because his sentences for those convictions had fully expired before he filed his petition. Therefore, the Court lacks jurisdiction over the petition to the extent Petitioner challenges any of those convictions.
If a petitioner files a habeas petition while still in custody for the underlying conviction and completes serving the sentence prior to the court's consideration of the petition, generally, the petition is considered moot because there is no active case or controversy. DeFoy v. McCullough , 393 F.3d 439, 441 (3d Cir. 2005) (citing Lane v. Williams , 455 U.S. 624, 631 (1982)). Thus, "[i]f developments occur during the course of adjudication that eliminate a [petitioner's] personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp. , 77 F.3d 690, 698-99 (3d Cir. 1996); see Wilson v. Reilly , 163 F.Appx. 122, 125 (3d Cir. 2006); Short v. U.S. Parole Comm'n., No. 05-6042, 2006 WL 2520351, at *1 (E.D. Pa. Aug. 29, 2006) (Pratter, J.). However, if the petitioner can demonstrate that some "concrete and continuing injury" continues to flow from the fact of the conviction, then the suit can be maintained. Spencer v. Kemna , 523 U.S. 1, 7 (1998). See also Lane , 455 U.S. at 632 ...