The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY E. HERRERA, :
CIVIL ACTION NO. 3:22-1946
Petitioner :
(JUDGE MANNION)
Vv. :
WARDEN ORZEN, :
Respondent :
JEFFREY E. HERRERA., :
CIVIL ACTION NO. 3:22-1947
Petitioner :
(JUDGE MANNION)
Vv. :
PA BD. OF PROB AND PAROLE, :
Respondent :
MEMORANDUM
Petitioner, Jeffrey E. Herrera, a former Pennsylvania Department of
Corrections inmate,’ filed the above captioned petitions for writ of habeas
corpus pursuant to 28 U.S.C. §2254. (Doc. 1). In both actions, Herrera
challenges his underlying conviction, as well as the legality of a period of
detention from March 4, 2019 through November 7, 2019. Id.
1 Petitioner was released from custody on June 22, 2021, and currently
resides at the Salvation Army Adult Rehabilitation Center, Binghamton, New
Vork
For the reasons outlined below, the petitions for writ of habeas corpus
will be dismissed for this Court's lack of jurisdiction.
l. Background?
On April 22, 2020, Petitioner was sentenced to a maximum of two
years of incarceration after violating his probation in a Lackawanna County
criminal case. (Doc. 14-1 at 2, Sentence Status Summary).
On January 26, 2021, Petitioner was released on parole. (Doc. 14-1 at
6, Order to Release on Parole).
On April 5, 2021, Petitioner was recommitted for violating the
conditions of his parole. (Doc. 14-1 at 8, Parole Board Decision).
On June 22, 2021, Petitioner was released on parole. (Doc. 14-7 at 12,
Order to Release).
On June 29, 2021, Petitioner was returned to a state correctional
institution after being charged with parole violations. (Doc. 14-7 at 14, Moves
Report).
2 The factual background has been derived from the exhibits attached
to the response filed in Herrera v. Pa Bd of Probation and Parole, Civil No.
3:22-cv-1947. (See Doc. 14).
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By Order dated September 15, 2021, Petitioner's April 22, 2020
sentence was vacated by the trial court. (Doc. 14-1 at 16).
Petitioner was released from a state correctional institution on
September 15, 2021. (Doc. 14-1 at 14, Moves Report).
By Notice of Board Decision dated September 16, 2021, the
Pennsylvania Board rescinded its April 5, 2021 action due to Petitioner's
sentence being vacated and closed Petitioner’s case. (Doc. 14-1 at 27).
On December 8, 2022, Petitioner filed both petitions for writ of habeas
corpus challenging his underlying conviction and the legality of a period of
detention from March 4, 2019 through November 7, 2019. (Doc. 1).
ll. Discussion
Petitioner can no longer attack his April 22, 2020 conviction and
sentence directly as Title 28 U.S.C. §2254(a) contains a jurisdictional
requirement. It states that an applicant seeking habeas relief must be ‘in
custody” pursuant to the conviction under attack. See Maleng v. Cook, 490
U.S. 488, 490-491 (1989): Obado v. State of New Jersey, 328 F.3d 716, 717
(3d Cir. 2003); 28 U.S.C. §2241(c)(3). The “in custody” determination is
made at the time the section 2254 petition is filed. Carafas vs. LaVallee, 391
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U.S. 234, 238 (1968). Once met, jurisdiction is not negated by the petitioner's
subsequent release from custody while the petition is pending. !d.
The “in custody” requirement has been liberally construed for the
purposes of habeas corpus and does not require that a prisoner be physically
confined in order to bring a habeas corpus petition challenging his sentence.
Maleng, 490 U.S. at 492. The meaning of “custody” has been broadened so
that it is no longer limited in the §2254(a) context to physical custody alone
but also applies where individuals are subject both to “significant restraints
on liberty ... which were not shared by the public generally,” along with “some
type of continuing governmental supervision.” Barry y. Bergen County
Probation Dept., 128 F.3d 152, 160 (3d Cir. 1997) (quoting Jones v.
Cunningham, 371 U.S. 236, 240, 242 (1963), and Tinder vy. Paula, 725 F.2d
801, 803 (1st Cir. 1984) ). However, “no court has held that a habeas
petitioner is in custody when a sentence imposed for a particular conviction
had fully expired at the time the petition was filed.” Bolus v. District Atlonney
of Lackawanna County, No. 3:CV-01-1990, 2001 WL 1352120, *1 (M.D. Pa.
Oct. 26, 2001)(Caputo, J.); Maleng, 490 U.S. at 491. Additionally, where a
petitioner suffers no present restraint resulting from an expired conviction,
he is not “in custody” for the purposes of invoking federal habeas jurisdiction
to challenge that conviction. Maleng, 490 U.S. at 492. Thus, clearly, “custody
is the passport to federal habeas corpus jurisdiction. Without custody, there
is no detention. Without detention, or possibility thereof, there is no federal
habeas jurisdiction.” United States ex rel. Dessus v. Pennsylvania, 452 F.2d
557, 560 (3d Cir. 1971).
At the time Herrera filed his petitions he was no longer subject to the
terms of his confinement, and, as such, was not “in custody” for purposes of
directly challenging his April 2020 conviction and sentence. Because of the
“in custody” requirement, the Court lacks jurisdiction to entertain his
petitions. Accordingly, the petitions will be dismissed.
lll. Conclusion
In accordance with the foregoing, the petitions for a writ of habeas
corpus filed pursuant to 28 U.S.C. §2254 (Doc. 1) will be dismissed for lack
of jurisdiction.
A separate Order will be issued.
M HY E. MANNION
United States District Judge
DATE: April22023
22-1946-01
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