United States District Court, W.D. Pennsylvania
Maureen P. Kelly Magistrate Judge
Andrew Tchirkow ("Petitioner") initiated this
Petition for Writ of Habeas Corpus by a Person in State
Custody pursuant to 28 U.S.C. Â§ 2254 (the
"Petition"). As explained in this Court's
recent Order To Show Cause, ECF No. 20, although not clear in
the Petition itself, the Respondents' Answers clarified
that Petitioner is challenging neither his conviction or his
sentence as imposed but is instead challenging his then
ongoing detention in the Westmoreland County Prison. As noted
previously, the sole ground for relief that Petitioner raises
is as follows:
I am being held in the Westmoreland County Prison without
access to the courts, without legal representation, without
appellate rights, without an assigned judge or a defined jail
term. I am being arbitrarily detained and devoid of any state
legal process .... I was charged on 8/21/17 for an incident
that occurred on 7/19/17 before my year of
consecutive probation to my state sentence was to commence,
having no violating effect on 393C2014.
ECF No. 1 at 5.
Answer filed by the Pennsylvania Board of Probation and
Parole (the "Board"), ECF No. 17, and the Answer
filed by the Westmoreland County District Attorney's
Office, ECF No. 18, helped to clarify exactly what Petitioner
is complaining about.
explained in the Order to Show Cause:
The two Answers indicate that Petitioner had been sentenced
on June 8, 2015 to serve 18 to 36 months incarceration
followed by 2 years of state supervised probation by the
Board. ECF No. 18 ¶ 4. After Petitioner filed a Motion
for Reconsideration, the sentencing order was amended to
reduce his supervised probation to only one year.
Id. ¶ 5. Moreover, after Petitioner's 18 to
36 month sentence of incarceration had reached its maximum
and was completed on August 1, 2017, Petitioner was going to
be released to begin his consecutive sentence of one year
probation. However, "due to Petitioner's refusal to
sign off on the rules of his state-supervised probation, he
was returned from state prison to the Westmoreland County
Jail at the expiration of his maximum term of
incarceration." ECF No. 18 ¶ 6. On June 4, 2018,
while Petitioner was still housed in the Westmoreland County
Prison, Senior Judge Timothy P. Creany ordered that
Petitioner was to be released from Westmoreland County Prison
as soon as he complied with administrative processing
required by the Board. Id. ¶ 8. On June 29,
2018, Senior Judge Creany ordered that Petitioner shall
remain at the Westmoreland County Prison Until he complies
with the conditions of his release in the June 4, 2018 Order
of Court or until his sentence of probation would expire on
August 1, 2018. Id. ¶ 9. Petitioner apparently
refused to sign the paperwork which would have permitted him
to be released from the Westmoreland County Prison, and, as a
consequence, Petitioner remained in the Westmoreland County
Prison until August 1, 2018, when he was released at what
would have been the completion of his sentence of probation,
if he had signed the paperwork permitting him to be released
on probation. Id. ¶ 10.
Meanwhile, Petitioner initiated the present habeas
proceedings in this Court on May 2, 2018 with the filing of
the Petition, which, as read through the lens of the Answers,
demonstrated that the Petition was only challenging
Petitioner's ongoing custody in the Westmoreland County
Prison after he had completed his maximum sentence of
incarceration on August 1, 2017 (nearly one year prior to the
filing of this Petition) and was then being held until he
formally agreed to the conditions of his probation.
As the Answers explain, the custody that Petitioner was
challenging by means of this Petition, ended on August 1,
2018, when he was released from the Westmoreland County Jail.
Furthermore, the Board's Answer explains that
"Petitioner is no long under supervision" as of
August 1, 2018. ECF No. 17 ¶ 5.
That Petitioner is now at liberty is confirmed by a recent
filing made by Petitioner, Le., ECF No. 19, wherein he
indicates that his current address is apparently that of a
ECF No. 20 at 2-3.
light of the foregoing, the Court ordered Petitioner to show
cause why this Petition did not become moot upon his release
from all custody of which he was complaining. ECF No. 20.
Petitioner filed his response to the Order to Show Cause,
which was docketed as a "Motion for Order to Show
Cause" ("Response"). ECF No. 21.
Petitioner's Response does not directly address the
pertinent question of why the Petition has not been rendered
moot upon his release from the confinement, which he was
challenging as unconstitutional. The most that Petitioner
says as to why he believes this case should continue is that
he wants the case to remain open because he believes that by
doing so he can acquire the digital transcription of his
criminal trial. ECF No. 21 at 2 ("In summary, I am
attempting to keep 18-560 active as a catalyst to acquire the
digital transcription from my trial. Westmoreland Judiciary
has played game after game to deny them."). The Response
is simply inadequate to carry Petitioner's burden to show
that the instant habeas case is not moot.
Petitioner challenged solely his period of confinement
brought about by his refusal to comply with the requirements
for his release on probation, and that period of confinement
ended during the pendency of this Petition, the Petition is
now moot and Petitioner has not carried his burden show
otherwise. See, e.g., DeFoy v. McCullough, 393 F.3d
439 (3d Cir. 2005) (it is a habeas petitioner's burden to
demonstrate that his case is not moot once he has been
released from the custody where he is merely challenging the
custody); Bohannon v. Capozza, CV 18-1238, 2019 WL
367037, at *3 (W.D. Pa. Jan. 30, 2019) ("As nothing in
Petitioner's Response to the Order to Show Cause carries
his burden to establish that the Petition, challenging the
detainer and detention pursuant thereto, is not now moot, the
Petition should be dismissed as moot."); Buck v.
Push. CIV.A. 12-1669, 2013 WL 3972654, at *2 (W.D. Pa.
July 30, 2013) ("because Petitioner has been released
from the custody of the Bureau of Prisons ('BOP') and