United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE.
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.
FACTUAL AND PROCEDURAL HISTORY
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.
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.
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).
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
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:
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.
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