ASHBY v. HARPER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANDREW G. ASHBY, )

)

Petitioner, ) Civil Action No. 2:20-cv-1316

)

v. )

) Magistrate Judge Patricia L. Dodge

ORLANDO HARPER, et al., )

)

Respondents. )

MEMORANDUM

Pending before the Court1 is the petition for a writ of habeas corpus filed by state prisoner

Andrew G. Ashby (“Petitioner”) pursuant to 28 U.S.C. § 2241. (ECF No. 6.) For the reasons set

forth below, the Court will deny the petition because it is moot and will deny a certificate of

appealability.

I. Relevant Background2

In 2010, Petitioner was charged in the Court of Common Pleas of Allegheny County (the

“trial court”) with robbery and criminal conspiracy. That criminal case, which was docketed in the

state court at CP-02-CR-4697-2010, shall be referred to herein as “Case No. 1.” Petitioner was

convicted of all charges. The trial court ultimately sentenced him to a term of four to eight years

of imprisonment on the robbery conviction, to be followed by three years of probation on the

conspiracy conviction.

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to

have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a final judgment.

2 The following background is taken from information provided by Respondents in their Answers

(ECF Nos. 12, 21), to which they attached the relevant parts of the state court record. The Court

also takes judicial notice of the information available on the trial court’s public docket sheets,

which are available online at https://ujsportal.pacourts.us.

Petitioner was paroled in 2018. He absconded from supervision and was arrested in

November 2019 and housed in the Allegheny County Jail. In December 2019, Petitioner was

transferred to the Renewal Center and was under the Allegheny County Probation Office’s

supervision.

Petitioner violated the terms of his release and, therefore, on July 14, 2020 the trial court

issued a bench warrant in Case No. 1 for his arrest due to a probation violation. (See Resp’s Ex. 4,

ECF No. 21-1 at p. 20.) Several days later, Petitioner committed new criminal offenses and was

arrested on those charges. Specifically, on July 22, 2020, Petitioner was arrested and charged with

aggravated assault, disarming a law enforcement officer, resisting arrest, and possession of

marijuana. Those charges were filed with the trial court in a case docketed at CP-02-CR-6027-

2020. That case shall be referred to herein as “Case No. 2.” The trial court appointed Attorney Lisa

Vogel Caulfield to represent Petitioner.

Petitioner’s Gagnon I3 hearing was held on August 3, 2020. His Gagnon II hearing was

postponed until after the disposition of the criminal charges filed in Case No. 2. (ECF No. 21 at

pp. 2-3.)

On December 14, 2020, Attorney Caulfield filed in Case No. 1 a motion requesting that

the trial court transfer the detainer lodged against Petitioner at the Allegheny County Jail and direct

that he be released to Justice Related Services. (Resp’s Ex. 6, ECF No. 21-1 at pp. 29-32.) The

3 A defendant is generally entitled to two separate hearings prior to revocation of parole or

probation. Gagnon v. Scarpelli, 411 U.S. 778 (1973). The purpose of the first (Gagnon I ) hearing

is to “ensure against detention on allegations of violation that have no foundation of probable

cause.” Commonwealth v. Perry, 385 A.2d 518, 520 (Pa. Super. Ct. 1978). The purpose of the

second (Gagnon II) hearing is to determine whether facts exist to justify revocation of parole or

probation. Id.

trial court denied that motion, explaining that Petitioner “is facing violent charges [in Case No. 2]

and is a flight risk.” (Resp’s Ex. 7, ECF No. 21-1 at p. 33.)

In the meantime, in October 2020 Petitioner filed with this Court the instant petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 6.) He is proceeding pro se and has

been granted leave to proceed in forma pauperis. Petitioner claims that his detention at the

Allegheny County Jail is unlawful because he believes that no individual or entity had the authority

to lodge a detainer against him. He also argues that his Gagnon I hearing was procedurally

inadequate.4 (ECF No. 6 at pp. 3-5.) As relief, Petitioner seeks an order from this Court directing

that he be released from the Allegheny County Jail and transferred to a halfway house. (Id. at p. 5.)

The Pennsylvania Board of Probation and Parole filed its answer to the petition on

February 13, 2021. (ECF No. 12.) It explained that it did not issue the detainer that is the subject

of this case and is not involved in the matters complained of in the petition. The two remaining

respondents are the District Attorney of Allegheny County and Orlando Harper, who is the Warden

of the Allegheny County Jail. They filed their answer to the petition on April 5, 2021. (ECF

No. 21.) They describe Petitioner as a “pretrial detainee awaiting his Gagnon II hearing[,]” and

assert that this Court should deny his habeas petition because he did not exhaust his available state

court remedies and also because he did not establish that he is in custody in violation of

constitutional rights.

4 Petitioner also claims that the COVID-19 lockdown restrictions at the Allegheny County Jail

violate his Eighth Amendment rights. (ECF No. 6 at p. 6.) This claim is not cognizable in a habeas

action. See, e.g., Houck v. Moser, No. 3:20-cv-255, 2021 WL 1840827, *1 (W.D. Pa. May 7, 2021)

(“Even in the COVID-19 era, a writ of habeas corpus is not a generally available remedy outside

the immigrant detainee context contemplated in Hope [v. Warden York County Prison, 972 F.3d

310, 325 (3d Cir. 2020)[.]”; see also Williams, et al. v. Sec’y Pennsylvania Dep’t of Corr., 459 F.

App’x 87, 88-89 (3d Cir. 2012) (citing Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002)); Lopez

v. Wetzel, No. 12-cv-96, 2012 WL 345215, *1-5 (W.D. Pa. Feb. 1, 2012).

Petitioner did not file a reply or request another extension to file one. See Local Rule

2254.E.2 (“the petitioner may file a Reply (also known as ‘a Traverse’) within 30 days of the date

the respondent files its Answer.”).

A review of the trial court’s docket for Case No. 2 establishes that on April 13, 2021

Petitioner pleaded guilty to the offenses of aggravated assault, disarming a law enforcement

officer, and resisting arrest.5 On April 21, 2021, the trial court sentenced him to an aggregate

sentence of twenty-one to forty-two months of imprisonment to be followed by a two-year term of

probation.

II. Discussion

The purpose of a writ of habeas corpus is to challenge the legal authority under which a

prisoner is held in custody. See, e.g., Keitel v. Mazurkiewicz, 729 F.3d 278, 280 (3d Cir. 2013)

(citing, inter alia, Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “For state prisoners, federal

habeas corpus is substantially a post-conviction remedy.” Moore v. DeYoung, 515 F.2d 437, 441

(3d Cir. 1975) (citing Peyton v. Rowe, 391 U.S. 54, 50 (1967) and 28 U.S.C. § 2254). After a state

prisoner has been convicted, sentenced, and has exhausted his remedies in the state courts, he may

seek federal habeas relief pursuant to 28 U.S.C. § 2254, which is the federal habeas statute

applicable to state prisoners “in custody pursuant to the judgment of a State court[.]” 28 U.S.C.

§ 2254(a).

While § 2254 applies to post-trial situations, the more general habeas corpus statute of

28 U.S.C. § 2241 does provide federal courts with jurisdiction to issue a writ of habeas corpus

filed by a state pretrial detainee, but only in very limited circumstances. The United States Court

of Appeals for the Third Circuit has warned that jurisdiction over a state prisoner’s § 2241 pretrial

5 The charge of possession of marijuana was withdrawn.

petition “must be exercised sparingly in order to prevent in the ordinary circumstance ‘pre-trial

habeas interference by federal courts in the normal functioning of state criminal processes.’”

Duran v. Thomas, 393 F. App’x 3 (3d Cir. 2010) (quoting Moore, 515 F.2d at 445-46).

Additionally, regardless of whether a state prisoner is proceeding under § 2241 or § 2254, and

except in very rare circumstances that do not apply here, a petitioner must first exhaust his

available state-court remedies before he may proceed with his claims in federal court. 28 U.S.C.

§ 2254(b), (c); see, e.g., Breakiron v. Wetzel, No. 2:14-cv-570, 2015 WL 451167, *7 (W.D. Pa.

Feb. 3, 2015) (citing Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986) and Moore,

515 F.2d at 441).

As set forth above, the District Attorney and Warden Harper argue in their answer that the

Court should dismiss Petitioner’s claims due to lack of exhaustion. However, certain developments

after they filed their answer require this Court to first address whether the habeas petition is now

moot as that affects this Court’s jurisdiction. See, e.g., Keitel, 729 F.3d at 280. In this case,

Petitioner is no longer a pretrial detainee. He is now in custody pursuant to the state-court judgment

issued in Case No. 2 on April 21, 2021. Accordingly, Petitioner’s request for federal habeas relief

under § 2241 is moot and the Court will deny the petition for that reason. See, e.g., Williams v.

New Jersey, No. 18-cv-14964, 2020 WL 3259223, at *2 (D.N.J. June 16, 2020) (state prisoner’s

guilty plea moots his § 2241 habeas petition challenging pretrial detention); Jones v. Mullen,

No 17-cv-1366, 2017 WL 7691900, at *2 (W.D. Pa. Dec. 8, 2017) (“where a habeas petitioner is

challenging pretrial custody, after the petitioner is convicted, the habeas petition challenging the

pretrial custody is rendered moot by the conviction.”), report and recommendation adopted by,

2018 WL 889027 (W.D. Pa. Feb. 14, 2018).

Because jurists of reason would not find it debatable whether Petitioner’s § 2241 petition

should be denied as moot, a certificate of appealability is denied with respect to all claims. Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

An appropriate order follows.

/s/ Patricia L. Dodge

Date: June 1 , 2021 PATRICIA L. DODGE

United States Magistrate Judge