Sandusky v. Hainsworth

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

GERALD SANDUSKY, :

Petitioner : CIVIL ACTION NO. 3:22-500

V. : (MANNION, D.J.)

(SAPORITO, M.J.)

MELISSA HAINSWORTH, ef ai., _ :

Respondents :

MEMORANDUM

Presently before the court is the April 7, 2022 Report and

Recommendation (“Report”) of Magistrate Judge Joseph F. Saporito,' (Doc.

2), which recommends that the petition for a writ of habeas corpus, pursuant

to 28 U.S.C. §2254, (Doc. 1), filed through counsel by petitioner Gerald

Sandusky be summarily dismissed without prejudice for lack of jurisdiction.

‘Counsel misidentifies Magistrate Judge Saporito as “the Magistrate”

on multiple occasions in his filing. The title “magistrate” has not existed in

the U.S. Courts for over 30 years, having been changed from “magistrate” to

“magistrate judge” in 1990. (see Judicial Improvements Act of 1990, 104

Stat. 5089, Pub. L. No. 101-650, §321 (1990), “After the enactment of this

Act, each United States magistrate . . . shall be Known as a United States

magistrate judge.”). Counsel is reminded to use the correct title in the future,

when referring to Judge Saporito or any other United States Magistrate

Judge.

Specifically, the Report finds that even though the petitioner is in custody in

a state correctional institution, SCI Laurel Highlands, awaiting to be

resentenced in Centre County Court for his June 22, 2012 convictions of 45

counts relating to the sexual abuse of young boys, he is not yet in custody

pursuant to a state court judgment of sentence and the court lacks

jurisdiction over his habeas petition. See Commonwealth v. Gerald

Sandusky, Docket Nos. CP-14-CR-0002421-2011, CP-14-CR-0002422-

2011 (C.C.P. Centre County).2 The Report indicates that since no final

judgment of sentence has been imposed in the petitioner’s state court

criminal case regarding his conviction, his habeas petition is premature. The

Report also finds that there is no need to stay the petitioner’s habeas petition

and hold it in abeyance until he is resentenced since the AEDPA’s one-year

statute of limitations for a §2254 petition will not start to run until his sentence

has become final after his resentencing.

Although the petition was served on respondents by the petitioner, the

court has not yet issued a show cause order and, to date, respondents have

2The court takes judicial notice of petitioner’s Centre County Court

Criminal Dockets which indicate that he has not yet had his resentencing

hearing in state court regarding his stated convictions after the Pennsylvania

Superior Court, on May 13, 2021, affirmed the petitioner’s judgment of

sentence in part, and vacated it in part, remanding the case for further

resentencing. Commonwealth v. Sandusky, 256 A.3d 27, 2021 WL 1924157,

at *6 (Pa. Super. Ct. 2021) (unpublished table decision). See

http://www.pacourts.us/courts/courts-of-common-pleas/docket-sheets.

not responded to the petition. On April 20, 2022, the petitioner filed objections

to the Report. (Doc. 4).

For the following reasons, the Report, (Doc. 2), will be ADOPTED IN

PART, to the extent that it finds the court lacks jurisdiction over the

petitioner’s habeas petition, (Doc. 1), challenging his conviction. The

petitioner’s objections, (Doc. 4), will be OVERRULED IN PART, regarding

the jurisdictional issue, and SUSTAINED IN PART, to the extent the petition

requests the court to stay his petition until he is resentenced.3

I. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.

Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

3Since the Report, (Doc. 2 at 1-3), states the correct background of this

case and the petitioner did not object to it, the court does not repeat it herein.

See also habeas petition, Doc. 1.

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, “satisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)

(explaining judges should give some review to every Report and

Recommendation)). Nevertheless, whether timely objections are made or

not, the district court may accept, not accept or modify, in whole or in part,

the findings or recommendations made by the magistrate judge. 28 U.S.C.

§636(b)(1); M.D. Pa. Local Rule 72.3.

II. DISCUSSION

The Report finds that “[a]lthough Sandusky was originally sentenced

and then, following a successful PCRA petition, resentenced to serve a term

of 30 to 60 years in prison for his convictions, his most recent sentence was

vacated on direct appeal, and he is currently in custody awaiting

resentencing.” As such, the Report concludes that “[b]ecause [the petitioner]

is not yet in custody pursuant to a state court judgment of sentence, this

Court lacks jurisdiction to adjudicate his §2254 petition.” (Doc. 2 at 4-5)

(citations omitted). Thus, the Report recommends that the court dismiss the

petitioner’s habeas petition without prejudice as premature.

“A federal court has jurisdiction to entertain a petition for a writ of

habeas corpus under §2254 only if the petitioner was ‘in custody pursuant to

the judgment of a State court’ when the petition was filed.” Johnson v. Waden

McDowell FCI, 796 Fed.Appx. 73, 75 (3d Cir. 2019) (citations omitted). “For

there to be jurisdiction, the petitioner must be in ‘custody’ that arises

‘pursuant to the judgment of a state court’ that is under attack.” Id. (citation

omitted).

There is no question that the petitioner was in state custody when he

filed his habeas petition. Nor is there any dispute that petitioner is currently

awaiting to be resentenced in Center County Court. However, in his

objections, petitioner states that the court should not adopt the Report since

he is only going to be resentenced regarding restitution, see Commonwealth

v. Sandusky, 256 A.3d 27, 2021 WL 1924157, *6 (Pa. Super. filed 5/13/21)

(“vacat[ing] that portion of Appellant’s criminal sentence at case number

2422-2011 requiring him to pay $95,047.88 in restitution” and stating that

“[u]pon remand, the sentencing court shall address any outstanding issues

related to the $95,047.88 in restitution”), and that this is “merely a ministerial

remand that will not result in any meaningful change in [his] conviction or

sentence from state court.” (Doc. 4 at 2). In the alternative, petitioner

requests the court to hold his petition in abeyance pending further

consideration after he is resentenced in the Centre County Court. Most of

the cases to which petitioner cites for support relate to the timeliness of a

motion to vacate a federal sentence pursuant to 28 U.S.C. §2255 as opposed

to a §2254 habeas petition challenging a state court conviction and sentence.

Petitioner also cites to Woodfolk v. Maynard, 857 F.3d 531, 542 (4th Cir.

2017), which pertained to a §2254 petition, but the Fourth Circuit Court’s

quote upon which he relies was from United States v. Dodson, 291 F.3d 268,

275 (4th Cir. 2002), which pertained to a §2255 motion, and held that “finality

is not delayed if an appellate court disposes of all counts in a judgment of

conviction but remands for a ministerial purpose that could not result in a

valid second appeal.” However, in Woodfolk, id., the Fourth Circuit also

pointed out that “where the court remands for a resentencing hearing, which

‘clearly may supply a defendant with the basis for a nonfrivolous appeal,’ the

limitations period does not begin to run until the final judgment is entered

following that resentencing.” The Court in Woodfolk, id., stated, “[t]he

majority of our sister circuits to consider the issue have concluded under

Burton [v. Stewart, 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628

(2007)], that, when a state court defendant has been granted a resentencing,

the limitations period under §2244(d)(1)(A) runs from the judgment entered

upon resentencing—even if, as here, the defendant’s habeas petition

challenges the underlying conviction.” The Court, id. at 543, then stated that,

“when a defendant is resentenced, he or she is confined pursuant to a new

judgment even if the adjudication of guilt is undisturbed.” (citation omitted).

No doubt that the Superior Court affirmed petitioner’s aggregate

sentence to a term of 30 to 60 years in prison for his convictions on all 45

counts, that was imposed on November 22, 2019, and this portion of his

sentence has not been disturbed. Also, in his habeas petition, petitioner

challenges his undisturbed counts of conviction and sentence based on

alleged violations of his constitutional rights and ineffective assistance of trial

counsel claims. As relief in his petition, petitioner seeks the court to vacate

his conviction and sentence, and grant him a new trial. (See Doc. 1).

At issue is whether the petitioner’s habeas petition is premature since

his judgment of sentence is not yet final. The court finds that because the

petitioner’s has not yet been resentenced by the Centre County Court, his

habeas petition regarding his convictions is subject to dismissal for lack of

jurisdiction. The petitioner is not “in custody” for purposes of habeas review

with respect to a final state court judgment of sentence on his convictions

that he is attacking at the time his habeas petition was filed. See Woolfolk,

857 F.3d at 542 (“The Supreme Court has … observed that, for purposes of

§2244(d)(1)(A), ‘[f]inal judgment in a criminal case means sentence. The

sentence is the judgment.”) (quoting Burton, 549 U.S. at 156); United States

ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 n. 6 (3d Cir. 1975) (‘“in

custody’ jurisdictional requirement is determined as of the date the

[application] is filed in the district court”); Harris v. Allen, 683 F.Supp2d 1284,

1289 (M.D. Al. 2010) (“Because [petitioner’s] sentence has been reversed

and because she is still awaiting re-sentencing, she is not in ‘custody

pursuant to the judgment of a State court.’”). See also Mercer v. Sterling,

2015 WL 1291668, *2 (D. S.C. Jan. 20, 2015) (The court dismissed the

habeas petition without prejudice. The court held that “[a]lthough [petitioner]

was originally sentenced to death for his murder conviction, his sentence

was vacated in his PCR action, and he is currently awaiting resentencing.”

“[S]ince [petitioner] does not currently have a sentence for that conviction,

he is not currently in custody pursuant to a state court judgment on that

conviction.”); Sandusky v. Hainsworth, 19-CV-1830, M.D. Pa. Feb. 3, 2020

Order) (denying Sandusky’s first §2254 habeas petition without prejudice,

due to lack of jurisdiction, after all 45 counts of which petitioner was convicted

were vacated for resentencing and while he awaited to be resentenced in

the Centre County Court, and declining to hold the petition in abeyance until

his resentencing).

Since the petitioner has not yet been resentenced in state court before

he filed his present habeas petition, he is clearly not ‘“in custody’ pursuant to

the judgment of a State court” regarding the stated counts of conviction and

sentence. §2254(a). As in the Harris case, our petitioner is “in custody

pending a [final] judgment” on his conviction. Harris, 683 F.Supp2d at 1290

(emphasis original). Thus, the court lacks jurisdiction over the petition.

Next, the court considers whether the habeas petition should be stayed

and held in abeyance as the petitioner contends in his objections, or whether

it should be dismissed without prejudice as the Report recommends. “In

Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005),

the Supreme Court sanctioned the use of the stay-and-abeyance procedure

in a context outside that of mixed [habeas] petitions.” Heleva v. Brooks, 581

F.3d 187, 191 (3d Cir. 2009). If there is a possibility that a petitioner’s

Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”), statute of

limitations will expire, this may constitute good cause to stay his habeas

petition and hold it in abeyance as opposed to dismissing it. See id.

The Report finds that there is no harm to petitioner with respect to

being time barred to file a new habeas petition after he is resentenced if the

court dismisses his habeas petition without prejudice since the “AEDPA

allows a state prisoner to wait until both his conviction and his sentence have

become final before filing a petition under §2254.” (Doc. 2 at 5 n. 1) (quoting

Scott v. Hubert, 635 F.3d 659, 667 (5th Cir. 2011)). See also 28 U.S.C.

§2244(d)(1)(A) (the 1-year AEDPA “limitation period shall run from ... the

date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review.”); Burton v. Stewart,

549 U.S. 147, 156-57127 S.Ct. 793 (2007) (holding that AEDPA’s statute of

limitations period does “not begin until both [a] conviction and sentence

‘become final by the conclusion of direct review or the expiration of the time

for seeking such review.’”) (emphasis original). The final judgment is the

sentence, see Burton, 549 U.S. at 156, and since the petitioner has not been

resentenced, he does not have a final state judgment with respect to his

conviction to attack in his instant petition. “A resentencing, …, results in a

new judgment of conviction for purposes of AEDPA.” Smith v. Sect., Florida

Dept. of Corrections, 691 Fed.Appx. 555, 556 (11th Cir. 2017).

However, petitioner’s statute of limitations for his claims seeking to

challenge his undisturbed aggregate sentence of 30 years to 60 years, on

his counts of conviction for which he will not be resentenced, may have

commenced to run. As in Romansky v. Superintendent Greene SCI, 933 F.3d

293, 300 (3d Cir. 2019), “the Pennsylvania courts imposed separate

sentences [on petitioner] for each count and conducted only a ‘limited’

resentencing.” The petitioner seems to indicate that if his petition is re-filed

at a later date following a dismissal without prejudice, it might be considered

untimely as to his prison sentence that has been affirmed with no

resentencing, and thus, he requests that his petition be held in abeyance

until his resentencing is complete.

In Romansky, the Third Circuit found that the resentencing does not

constitute a new judgment as to every count of conviction. The Court then

held “that Romansky’s habeas petition was not timely as to the conspiracy

conviction at his 1987 trial because the petition was not filed within one year

of the conclusion of his state post-conviction process and because the 2000

resentencing did not impose a new judgment as to the undisturbed counts of

conviction (including the conspiracy charge).” Id. at 300-01. Thus, in

Romansky, id. at 300, the Court found that “where some but not all counts of

conviction are disturbed on appeal or in post-conviction proceedings, the

defendant’s eventual resentencing is [not] a new judgment as to the

undisturbed counts of conviction.” As such, it is not clear if the sentence

imposed on Sandusky with respect to his restitution after his resentencing

will constitute a new judgment as to his sentence of imprisonment that was

not disturbed on appeal. See id.

Based on the record before the court, it is not clear if the AEDPA

statute of limitations has commenced to run, or has expired, with respect to

the petitioner’s undisturbed sentence of imprisonment and, it is not clear if

the petitioner has exhausted his claims with respect to this part of his

sentence which appears to only be at issue in his petition.

Accordingly, based upon the above stated Third Circuit caselaw, and

out of an abundance of caution in light of the specific circumstances of this

case, the court will grant the petitioner’s request to stay his habeas petition

and hold it in abeyance until after he is resentenced, and it will not dismiss

the petition without prejudice as recommended.4 In short, petitioner’s claims

regarding his counts of conviction and his prison sentence may be exhausted

even though he is to be resentenced on the restitution that was also imposed

as part of his sentence.

4The court notes that even though the habeas petition will be stayed

and held in abeyance until after the petitioner is resentenced, he must still

first exhaust in state court all of the claims he wishes to present to the district

court regarding his conviction and sentence. See 28 U.S.C. §2254(b)(1).

III. CONCLUSION

In light of the foregoing, Judge Saporito’s Report, (Doc. 2), will be

ADOPTED to the extent that it finds the court lacks jurisdiction over the

petitioner’s habeas petition, (Doc. 1), challenging his conviction and

sentence. Petitioner’s objections to the Report, (Doc. 4), will be

OVERRULED IN PART, and SUSTAINED IN PART. The court will STAY

the habeas petition and hold it in abeyance until the petitioner’s resentencing

on restitution is complete, and he exhausts his state court remedies

regarding his resentencing, if applicable. An appropriate order shall follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: April 28, 2022

22-500-01