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Congo v. County of Philadelphia

United States District Court, E.D. Pennsylvania

May 6, 2019

LARRY CONGO, Petitioner,
THE COUNTY OF PHILADELPHIA, et al., Respondents.



         Before the Court for Report and Recommendation is the pro se petition of Larry Congo (“Congo” or “Petitioner”) for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition purports to challenge a felony conviction for violation of 35 P.S. § 780-113(a)(30), “Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver” (“PWID”) obtained against him on April 13, 2016 in the Philadelphia Municipal Court, at No. MC-51-CR-0034681-2015. (Doc. 1 at ECF p. 3; Doc. 10 at ECF p. 1.) Congo filed his habeas petition on October 21, 2018, when his appeal for trial de novo of the Municipal Court conviction was still pending in the Philadelphia Court of Common Pleas at No. CP-51-CR-0003908-2016. He was detained at the time he filed his petition, as he is still, at SCI-Frackville in light of a parole detainer on another prior case. The appeal of his Municipal Court case was subsequently resolved, however, when he entered a negotiated guilty plea to a misdemeanor, 35 P.S. § 790-113(a)(19), “Purchase or Receipt of a Controlled Substance by an Unauthorized Person, ” on January 22, 2019 and the Commonwealth agreed to nolle prosse the PWID charge upon which the Municipal Court had found him guilty.

         As we set out below, we have determined that Congo has not established a basis for habeas relief at this time, as we are unable to discern what provision of the United States Constitution would have been violated by his current detention. What is clear, however, is that he has not satisfied his exhaustion obligation with respect to any of the state actions about which he now complains. To the extent his petition challenged his pre-trial confinement as he awaited trial on his appeal from Municipal Court, that challenge is mooted by his subsequent conviction in the Court of Common Pleas. To the extent his petition disputed the basis for the PWID charge lodged against him, his challenge is also now moot, in that this charge was dropped subsequent to the filing of his petition. Accordingly, we recommend that his petition be dismissed.


         A. Arrest; Municipal Court proceedings

         Congo was arrested in Philadelphia on November 6, 2015 after a police officer allegedly observed him selling a mental health medication for which Congo contends he had a prescription and which he carried for personal use. He was charged at MC-51-CR-34681-2015 with one count of Intentional Possession, 35 P.S. § 790-113(a)(16) and one count of PWID, 35 P.S. § 780-113(a)(30).[2] (Mun. Ct. Dkt. at 1-3.) He was detained pre-trial in the Philadelphia House of Corrections. (Mun. Ct. Dkt. at 4-8.)

         Congo was tried on April 13, 2016 in Municipal Court, which has jurisdiction over criminal offenses which are punishable by imprisonment for a term of not more than five years. See 42 Pa. Const. Stat. § 1123(a)(2). The Honorable William Austin Meehan, Jr., found him guilty of the felony PWID charge, § 790-113(a)(30), and not guilty of the misdemeanor charge of intentional possession of a controlled substance, § 790-113(a)(16). (Doc. 1 at ECF p. 46; Mun. Ct. Dkt. at 3.) He sentenced Congo to a term of imprisonment of “time served to 23½ months” and granted immediate parole. (Mun. Ct. Dkt. at 3, 8.)

         On April 21, 2016, Congo exercised his right of appeal under 42 Pa. Const. Stat. § 1123(a)(2) for trial de novo to the court of common pleas. (Mun. Ct. Dkt. at 8.) Correspondence that Congo appended to his filings here from this time suggests he believed: (1) that the Municipal Court lacked jurisdiction over a “narcotic drug felony, ” which is how he characterized his PWID conviction; (2) that Judge Meehan's findings were inconsistent with respect to the finding of guilt on PWID but the acquittal on the intentional possession charge, where Judge Meehan apparently accepted that Congo had a lawful prescription for the medication he was alleged to have sold; (3) that the prosecutor and his public defender improperly characterized the pills he possessed as “narcotics, ” when they were not; and (4) that that the medication, Klonopin (clorazepam) is a Schedule V controlled substance, and not a Schedule IV substance as the Commonwealth's exhibits suggested. See, e.g., Doc. 1 at ECF pp. 42, 114-29. But see 28 Pa. Code § 25.72 (characterizing clorazepam as a Schedule IV controlled substance).

         B. Parole implications

         At the time of his November 6, 2015 arrest on these charges, Congo was on parole in relation to prior convictions. His submissions accompanying his petition suggest that the parole related to two cases in which he had been sentenced to an aggregate term of 11-27 years on convictions of terroristic threats, witness tampering and criminal conspiracy (CP-51-CR-322122-1980, sentenced Sept. 1, 1982) and robbery, burglary, theft and criminal conspiracy (CP-51-CR-821191-1981, sentenced Dec. 31, 1982). See DOC Sent. Status Summary (June 20, 2018) (Doc. 1 at ECF pp. 138-41). In light of the 2015 arrest in this case, the Parole Board issued a detainer, such that he was transferred from local custody to SCI-Graterford following his conviction in Municipal Court. By notice dated June 14 and mailed June 30, 2016, the Parole Board recommitted Congo as a convicted parole violator to serve nine months of backtime “when available” following service of the sentence on his new conviction. In response to a challenge by Congo that the Board failed to apply proper credit towards his sentence, the Board explained it would issue a re-calculation decision to appropriately credit his time after his appeal in the Court of Common Pleas concluded, e.g., with his sentencing there. See Admin. Review Decision (Mar. 8, 2018) (Doc. 1 at ECF pp. 172-73).[3]

         C. Challenges to Municipal Court conviction

         Congo awaited his trial de novo in the Court of Common Pleas for some time as he changed counsel repeatedly and changed his mind as to whether he would proceed by way of a bench trial.[4] His case was still in this posture in the Court of Common Pleas on October 21, 2018 when he submitted a federal habeas petition to this Court, initiating this civil action. He identified as his challenged conviction the Municipal Court case, which he indicated was pending appeal in the Court of Common Pleas. He did not answer the questions in the form that asked him to identify his grounds for relief. See, e.g., Doc. 1 at ECF pp. 7, 9, 11 & 12 (leaving blank Grounds One through Four). Where the form asked him to identify the relief sought, he asked that the Court “obtain my laboratory seizure analysis and order state to release from illegal charge, and obtain my preliminary hearing transcripts and order the state to release me from false imprisonment.” (Doc. 1 at ECF p. 17.)

         On December 20, 2018, the Honorable Joseph F. Leeson, Jr., referred this matter to us for preparation of a Report and Recommendation. At that point, Congo's Common Pleas case was scheduled for trial. On his January 22, 2019 trial date, however, Congo entered a guilty plea to a violation of a different subsection of the Controlled Substances, Drugs, Devise and Cosmetic Act: 35 P.S. § 780-113(a)(19), “Intentional or Knowing Purchase/Receipt of Controlled Substance by an Unauthorized Person, ” a misdemeanor. The Commonwealth agreed to nolle pross the PWID felony charge of which he had been convicted in Municipal Court. Although a conviction of § 780-113(a)(19) is punishable by imprisonment of up to 3 years and/or a fine of $5, 000, see id., § 780-113(b), the Honorable Sierra Thomas Street imposed no further penalty. (CP Dkt. at 4, 16.) See also Written Guilty Plea Colloquy, p. 1 (Doc. 6 at ECF p. 5). A review of the state court dockets publicly-available online reveals no appeal filed by Congo as to this disposition. See Crim. Dkt. CP-51-CR-3908-2016 (last visited Apr. 1, 2019).

         Upon our review of the petition and available state court records, on February 21, 2019 we entered an Order (Doc. 7) directing Petitioner to submit a completed version of the § 2254 petition, which he did on or about March 17, 2019. (Doc. 10.) He identified his ground for relief as follows:

GROUND ONE: An A.D.A. Greg Lederman had me stand before a misdemeanor judge Meehan, William Austin Jr., with a Schedule I or II narcotic drug felony, knowing that information was not filed against me, and Judge Meehan knowing he had no jurisdiction over such a felony narcotic charge prosecuted and convicted me for it in misdemeanor court. Then I appealed and Philadelphia County filed the same Schedule I or II narcotic drug felony information against me knowing it was never filed in the first place.
Supporting facts: On appeal Judge Charles A. Ehrlich keep me on his court room from 2016 to 2019 knowing what the A.D.A. and the first judge did, and knowing this information was not filed or legally filed against me, and all of my counsels knew the same. Then Judge Ehrlich disappear[ed] and turn[ed] me over to Judge Sierra Thomas Street and her misconduct was more criminal than the judges before. I spent (3) years and (3) months with manufacture delivery [sic] with intent to manufacture deliver [sic] 35 P.S. 780-133A-30(F) in prison and that information was not filed then illegally filed against me.

(Doc. 10 at ECF p. 5.) He also appended an attachment asserting that the Parole Board and state prison should respond to his petition because they kept him on prior case(s) and detained him at the SCI beyond his maximum date of June 24, 2018. Id. at 15-16. He separately provided to the Court a further letter brief regarding his petition. (Doc. 11; dated Mar. 16, 2019).


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