United States District Court, M.D. Pennsylvania
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE.
Gerald Carrol Clark, Jr., a former Pennsylvania state inmate,
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his 2008 conviction for
failing to comply with the registration requirements for
out-of-state sex offenders living in Pennsylvania, 18 Pa.
Cons. Stat. Ann. § 4915.1(a)(1). (ECF No. 1.) Respondent
argues in favor of dismissal of the Petition as Mr. Clark was
not “in custody” pursuant to his 2008 conviction
when he filed his Petition and because it is untimely. (ECF
No. 13.) For the reasons set forth below, the Court will
dismiss the Petition for lack of jurisdiction because Mr.
Clark does not meet the “in custody” requirement
under 28 U.S.C. § 2254(a).
Relevant Procedural History
October 27, 2004, Mr. Clark plead guilty in the Circuit Court
for Carroll County, Westminster, Maryland to a third-degree
sexual offense, and received a 6-year prison term
(suspended), 5-years' unsupervised probation, 1-year of
home confinement and lifetime registration under
Maryland's version of Megan's Law. At the time Mr.
Clark was employed in Maryland and registered with the
Maryland State Police. Additionally, because he lived in
Adams County, Pennsylvania, he also registered with the
Pennsylvania State Police (PSP). (ECF No. 1 at 6-7 and ECF
No. 13 at 43.) In January 2007, the PSP notified Mr. Clark of
his obligation to notify the PSP of any change of address, or
employment, including termination within 48 hours. (ECF No.
13 at 31-33.) In July 2007, police authorities learned Mr.
Clark had been unemployed since April 2007. (Id. at
5, 2008, following a bench trial in the Court of Common Pleas
of Adams County, Pennsylvania, Mr. Clark was found guilty of
failing to comply with the registration of the sexual
offenders' requirements set forth in 18 Pa. Cons. Stat.
Ann. § 4915(a)(1). On October 21, 2008, the trial court
sentenced Mr. Clark to 30 days to 1-year incarceration,
followed by 1-year of consecutive probation, and $200.00
fine. (ECF No. 13-1 at 10 - 13.) Mr. Clark filed a timely
direct appeal. (Id. at 24, Commonwealth v.
Clark, CP-01-CR-0001003-2007 (Adams Cty. Ct. Com. Pl.)
(docket sheet)). On December 8, 2009, the Pennsylvania
Superior Court affirmed Mr. Clark's judgment of sentence.
See Commonwealth v. Clark, 990 A.2d 39 (Pa. Super.
2009),  appeal denied, 13 A.3d 474 (Pa.
2010). The Pennsylvania Supreme Court denied allocatur on
November 17, 2010. See Commonwealth v.
Clark, 608 Pa. 660, 13 A.3d 474 (Pa. 2010) (No. 9 MAL
1010, Table). On January 28, 2011, Mr. Clark's
application for reconsideration was denied by the
Pennsylvania Supreme Court. (Id.)
trial court stayed the execution of the judgment of sentence
throughout the completion of Mr. Clark's direct appeal.
(Id. at 24-26.) On February 28, 2011, the sentencing
court directed Mr. Clark to report to the Adams County Prison
on March 18, 2011 to commence serving his sentence. (ECF No.
13-1 at 27.) The sentencing court subsequently granted Mr.
Clark's request for parole effective April 20, 2011.
(Id.) On March 27, 2013, the sentencing court
entered an order noting Mr. Clark's completion of his
sentence and probation. (Id. at 30 and ECF No. 1 at
Clark filed a petition for post-conviction collateral relief
on April 7, 2016, pursuant to the Pennsylvania's Post
Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. §
9545, et seq. (ECF No. 13-1 at 31.) He filed a
second petition on May 16, 2016. (Id.) On April 13,
2016, without appointing Mr. Clark counsel, the sentencing
court issued a notice of its intent to dismiss the PCRA
petition based on Mr. Clark's ineligibility for relief as
he was no longer serving a sentence of imprisonment or
probation on the sentence he was challenging and because the
petition was untimely. (ECF No. 1 at 13.) On June 3, 2016,
the court dismissed Mr. Clark's PCRA petition without
[T]he Defendant is ineligible for relief as he is currently
not serving a sentence of imprisonment, probation, or parole
for the crime upon which he was convicted. See 42
Pa. C.S.A. § 9543. Additionally, the Petitions have not
been filed within one year of the date of final judgment and
therefore the Court lacks jurisdiction to consider the
Petitions pursuant to 42 Pa C.S.A. § 9545(b). Finally,
the Court notes the claim that the sentence is illegal
pursuant to Commonwealth v. Gordon, 992 A.2d 204
(Pa. Super. 2010), is meritless as Defendant was convicted of
failing to comply with the registration requirements under
former 42 Pa. C.S.A. § 9795.1(a). Commonwealth v.
Gordon addresses those required to register under former
[42 Pa. C.S.A. § 9]795.1(b)(4).
(Id. at 12.) Mr. Clark filed an
appeal. On December 22, 2016, the Superior Court
affirmed that Mr. Clark was ineligible for relief as his
sentence had expired. See ECF No. 1 at 19-21;
see also Commonwealth v. Clark, No. 953 MDA
2016, 2016 WL 7406862 (Dec. 22, 2016). The Supreme Court of
Pennsylvania denied Mr. Clark's petition for allowance of
appeal on July 6, 2017. See Commonwealth v.
Clark, 642 Pa. 28, 169 A.3d 1031 (Pa. 2017)(Table).
to the mailbox rule,  the Court deems Mr. Clark's habeas
Petition filed on July 17, 2017. (ECF No. 1.) When he filed
his Petition, Mr. Clark was incarcerated pursuant to a 2014
negotiated guilty plea agreement for failing to register with
the PSP and indecent assault of a person less than 13 years
of age. See Commonwealth v. Clark,
CP-01-CR-0001094-2013 (Adams Cty. Ct. Com. Pl.)
federal writ of habeas corpus is only available to persons
“in custody” for the conviction or sentence under
attack at the time the petition is filed. See 28
U.S.C. § 2254(a) (2019); Maleng v. Cook, 490
U.S. 488, 490, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989).
This requirement is jurisdictional. See Piasecki
v. Court of Common Pleas, 917 F.3d 161, 165-66 (3d Cir.
2019), cert. denied, No. 18-1490, 2019 WL 5686456
(Nov. 4, 2019). Where a federal habeas prisoner is in custody
for multiple offenses, he or she “can be in custody for
one but not the other.” Orie v. Sec'y Pa.
Dep't of Corr., 940 F.3d 845, 850 (3d Cir. 2019).
Thus, a district court must determine whether the petitioner
is “in custody” pursuant to the conviction he or
she seeks to challenge.
satisfy the “in custody” requirement, a
petitioner must be “'in custody' under the
conviction or sentence under attack at the time [the]
petition is filed.” Maleng, 490 U.S. at
490-91, 109 S.Ct. at 1925. The custody requirement does not
require that a petitioner be physically confined,
id. at 490, 109 S.Ct. at 1925, but it does require
that he or she “suffers from a ‘non-negligible
restraint on [her] physical liberty' because of a
particular conviction.” Orie, 940 F.3d at 850
(quoting Piasecki, 917 F.3d at 166.) It is
well-established that a petitioner satisfies the “in
custody” requirement if incarcerated, on parole,
probation, or subject to outstanding community service
obligations, when filing a petition for writ of federal
habeas challenging the conviction or sentence that imposed
the penalty. See Jones v. Cunningham, 371 U.S. 236,
242-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963)
(conditions and restrictions on parolee involved
“significant restraints” on parolee's liberty
to constitute “custody”); Lee v.
Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (the
“in custody” requirement is satisfied if
petitioner is on probation); Barry v. Bergen Cty.
Probation Dept., 128 F.3d 152 (3d Cir. 1997) (community
service obligations satisfied “custody”
requirement to support habeas corpus jurisdiction). However,
“fines, restitution orders, and other monetary
penalties are insufficient to meet the ‘in custody'
requirement.” United States v. Ross, 801 F.3d
374, 380 (3d Cir. 2015).
United States Supreme Court has “never held …
that a petitioner may be ‘in custody' under a
conviction when the sentence imposed for that conviction has
fully expired at the time his petition is
filed.” Maleng, 490 U.S. at 491, 109 S.Ct. at
1925 (emphasis in original). Thus, “once the sentence
imposed for a conviction has completely expired, the
collateral consequences of that conviction are not themselves
sufficient to render an individual ‘in custody' for
the purposes of a habeas attack on it.” Id.,
490 U.S. at 492, 109 S.Ct. at 1926. The fact that a
conviction used to enhance a subsequent criminal sentence may
not generally be used to “challenge the enhanced
sentence through a petition ...