United States District Court, E.D. Pennsylvania
RONALD W. PFORTER,
BRIAN THOMPSON, et al.
REPORT AND RECOMMENDATION
ELIZABETH T. HEY, Magistrate Judge.
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 in which Ronald W. Pforter ("Pforter") challenging the revocation proceedings and sentence he received for violating the conditions of his probation. At the time he filed his habeas petition, Pforter was incarcerated at the State Correctional Institution at Mercer, Pennsylvania, but has since been released from custody, having completed his maximum sentence. For the reasons that follow, I recommend that the petition be dismissed as moot.
I. FACTS AND PROCEDURAL HISTORY
On August 25, 2008, Pforter pled guilty to false imprisonment and attempted indecent assault. Commonwealth v. Pforter, No. CP-09-CR-0004245-2008, Docket Sheet (Bucks C.C.P.) ("Docket Sheet"). The charges arose from Pforter's attempted molestation of his minor child. Commonwealth v. Pforter, No. CP-09-CR-0004245-2008, Opinion at 1 (Bucks C.C.P. Nov. 14, 2013) ("Trial Ct. Op."). On December 23, 2008, the Honorable Rea Boylan sentenced Pforter to 6-to-23 months' incarceration and 24 months' probation on false imprisonment and a concurrent term of 24 months' probation for attempted indecent assault.
On July 7, 2009, Judge Boylan granted Pforter's application for parole. He was subject to multiple conditions of release including that he participate in a sex offender program and comply with the conditions and recommendations of the program. See Docket Sheet. On April 7, 2010, based on his termination from the sex offender program, Pforter was again incarcerated. See Trial Ct. Op. at 3.
On August 11, 2010, after a violation hearing, the Honorable Albert Cepparulo revoked the probation sentences on both charges and resentenced Pforter to 1-to-2 years' incarceration on each charge - false imprisonment and attempted indecent assault - to be served consecutively. See Docket Sheet. Pforter was given credit for 126 days toward the sentences. Id . Pforter did not appeal his violation sentence.
On January 13, 2011, Pforter filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, 42 Pa. C.S.A. § 9541. Appointed counsel filed an amended petition complaining that neither his counsel nor the court advised Pforter of his right to appeal and that his sentence was improper because the sentence imposed for his violation exceeded that imposed for the original offense. Commonwealth v. Pforter, No. 4245/2008, Amended Post-Conviction Relief Act Petition (Bucks C.C.P. filed Mar. 30, 2011). On August 5, 2013, after several hearings and a change of counsel, Judge Cepparulo denied Pforter's PCRA petition. Commonwealth v. Pforter, No. 4245-2008, Order (Bucks C.C.P. Aug. 5, 2013).
Pforter filed a timely appeal to the Pennsylvania Superior Court, claiming that his rights were violated when neither his counsel nor the court advised him of his appellate rights after he was sentenced for violating probation, and counsel was ineffective for failing to prepare for the violation hearing, and failing to interview and call necessary witnesses. Commonwealth v. Pforter, No. 2393 EDA 2013, Brief for Appellant (Bucks C.C.P. filed Mar. 19, 2014). On August 15, 2014, the Superior Court affirmed the denial of PCRA relief, finding that Pforter had completed serving his sentence and no longer met the jurisdictional requirements of the PCRA. Commonwealth v. Pforter, No. 2393 EDA 2013 at 6-7 (Pa. Super. Aug. 15, 2014).
While his appeal was pending in the Superior Court, Pforter filed this petition for habeas corpus claiming that he was improperly denied credit towards his sentence, that his counsel at the violation hearing was ineffective for failing to prepare for the hearing, cross-examine the state's witnesses, and challenge the fact that counsel was not present at the initial violation hearing, that his due process rights were violated when he received no advance notice of the initial violation hearing, and that his PCRA counsel was ineffective. See Doc. 1 ¶ 12 GROUNDS ONE - FOUR. At the time the Deputy District Attorney originally responded, she argued that Pforter's claims were unexhausted or procedurally defaulted, and that they lacked merit. See Doc. 7. Pforter filed a traverse. See Doc. 9.
After reviewing the response and learning from the state-court docket that Pforter's appeal had concluded, I ordered the District Attorney to provide a supplemental response. See Doc. 10. In the supplemental response, the Deputy District Attorney argues that the habeas petition is now moot based on Pforter's release. See Doc. 11 at 3-4.
A. Custody Requirement
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 or 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); 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"). Here, Pforter filed his habeas petition while he was still in custody on the convictions he attacks. "[U]nder the [habeas corpus] statutory scheme, once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such ...