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Nellom v. Commonwealth

United States District Court, E.D. Pennsylvania

September 27, 2019

FRANK NELLOM,
v.
COMMONWEALTH OF PENNSYLVANIA, et al.

          REPORT AND RECOMMENDATION

          CAROL SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE.

         Presently before the court is a Petition for a Writ of Habeas Corpus filed by Frank Nellom (“Petitioner”), pro se, pursuant to 28 U.S.C. § 2254. Petitioner seeks habeas relief to expunge his 1991 rape conviction, for which he finished serving his sentence in 2009. The Honorable Edward G. Smith referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(B)(1)(B). For the reasons set forth below, it is recommended that the habeas petition be DISMISSED.

         I. FACTUAL AND PROCEDURAL HISTORY[1]

         Petitioner is challenging his March 12, 1991 conviction in the Court of Common Pleas for Philadelphia County. Pet. at 1. See also Commonwealth v. Nellom, 141 A.3d 586 (Pa. Super. Ct. 2016). He was convicted of rape and sentenced to serve six to twenty years in prison. Nellom, 141 A.3d at 586. The Pennsylvania Superior Court affirmed Petitioner's judgment of sentence on October 29, 1992 and the Pennsylvania Supreme Court denied allowance of appeal on August 25, 1993. Id.

         Subsequently, Petitioner filed several unsuccessful state court challenges to his rape conviction, sentence calculation, and parole revocation. Resp. at 2. Further, between October 2001 and May 2004, Petitioner sought habeas relief via two separate petitions for habeas corpus, both of which were denied. Nellom v. Vaughn, No. 01-5416; Nellom v. DiGuglielmo, No. 04-3399. In January 2009, Petitioner completed the sentence for his rape conviction and was released from prison. Id.

         II. DISCUSSION

         “[A] district court shall entertain an application for a writ of habeas corpus . . . only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (2019). Further, the custody requirement demands “that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Petitioner does not seek to challenge his 1991 conviction, but instead seeks to have his 1991 rape conviction removed from his record. Pet. at 6. However, Petitioner had already fully served the sentence imposed for his 1991 rape conviction before filing this habeas petition. Resp. at 2. Hence, he is not “in custody” for that conviction. See Lackawanna Cty. Dist. Atty. v. Coss, 532 U.S. 394, 401 (2001) (citing Maleng, 490 U.S. at 492).

         Further, when “a state conviction is no longer open to . . . attack in its own right because the defendant failed to [successfully] pursue those remedies [but] that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.” Coss, 532 U.S. at 403. An exception to this general rule exists when the petitioner is serving a sentence that was enhanced by an expired sentence, if the expired sentence is challenged on the basis of an alleged violation of the petitioner's right to counsel under the Sixth Amendment. Id. at 404 (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). Another exception exists when the petitioner cannot be faulted for failing to obtain timely review. Id. at 405-06. An example of this exception would be if a state court, “without justification, refuse[s] to rule on a constitutional claim that has been properly presented to it.” Id. at 405. Similarly, an exception would exist if, “after the time for direct or collateral review has expired, a defendant . . . obtain[s] compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner.” Id. Petitioner does not advance any of these exceptions; therefore, he is unable to challenge his 1991 conviction on the ground that it may have enhanced the sentence he is presently serving.[2]

         III. CONCLUSION

         Petitioner's sole claim is not cognizable. Reasonable jurists would not debate this court's procedural disposition of this claim; therefore, a certificate of appealability should not be issued. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, I make the following:

         RECOMMENDATION

         AND NOW, on this 27th day of September, 2019, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that Petitioner's claim be DISMISSED, without an evidentiary hearing. Petitioner has neither demonstrated that any reasonable jurist could find this court's ruling debatable, nor shown denial of any federal constitutional right. Hence, there is no probable cause to issue a certificate of appealability.

         Petitioner may file objections to this Report and Recommendation within fourteen (14) days of being served with a copy of it. See Local R. Civ. P. 72.1(IV). Failure to file timely ...


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