habeas petition may be dismissed where “none of the grounds alleged in the petition would entitle [the petitioner] to relief[.]”
How later courts described this case
- habeas petition may be dismissed where “none of the grounds alleged in the petition would entitle [the petitioner] to relief[.]”
- describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH DIVISION
DYLAN P. DUNBAR, )
)
) Civil Action No. 2:25-cv-00534
Petitioner, )
) Chief United States District Judge
vs. ) Mark R. Hornak
)
CHRISTY SCOTT, ADULT )
)
PROBATION OFFICER, United States Magistrate Judge
)
WESTMORELAND COUNTY; AND ) Christopher B. Brown
NICOLE ZICARELLI, DISTRICT )
ATTORNEY, WESTMORELAND )
)
COUNTY, )
)
Respondents. )
REPORT AND RECOMMENDATION RECOMMENDING
DISMISSAL OF PETITION FOR LACK OF JURISDICTION
Christopher B. Brown, United States Magistrate Judge
I. Recommendation
Petitioner, Dylan P. Dunbar, initiated this case on April 18, 2025, by
submitting a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), ECF
No. 1. Attached to the IFP motion is a petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241. ECF No. 1-1. The respondents are Christy Scott,
Adult Probation Officer, Westmoreland County, and Nicole Zicarelli, District
Attorney, Westmoreland County.
Upon review of the petition, it is recommended the petition be dismissed with
prejudice without service as “it plainly appears from the petition” this Court lacks
subject matter jurisdiction as Dunbar was not “in custody” at the time he filed the
petition. It is further recommended the IFP Motion be denied as moot.
I. Procedural History
The Petition is less than a model of clarity and the Court finds it difficult to
understand how Dunbar’s allegations give rise to any cognizable habeas claims. For
example, the Petition states Dunbar “is currently subject to an illegal and
retaliatory restraint based on an alleged PFA violation and associated probation
violations.” ECF No. 1-1, ¶ 2. It appears he is attempting to challenge a “so-called
PFA violation [that] was never lawfully served; instead, notice was sent to a third
party with hostile intent.” Id., ¶ 3. Dunbar’s Affidavit in support of his habeas
petition indicates he has an upcoming probation revocation hearing which “arises
from an alleged Protection from Abuse (PFA) violation that was adjudicated without
my knowledge, without proper notice served at my legal residence, and without a
meaningful opportunity for me to appear or defend myself.” ECF 1-1, Affidavit, ¶ 2.
Dunbar contends he fears that if he appears for the probation revocation hearing he
“will be unlawfully incarcerated based on a procedurally defective and
unconstitutional process[.]” Id., ¶ 7.
The petition does not state that Dunbar is currently being held in the custody
of any state or local official, and the return address he provided is that of a private
residence and not that of a prison or correctional institution.
II. Standard of Review
Habeas Rule 4 requires the Court to examine a petition prior to ordering an
answer and to dismiss the petition if the petitioner is not entitled to relief. Habeas
Rule 4 provides in relevant part:
The clerk must promptly forward the petition to a judge
under the court’s assignment procedure, and the
judgment must promptly examine it. If it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to
notify the petitioner.
Rule 4 – Rules Governing Section 2254 Cases (applicable through Rule 1(b) to
petitions under 28 U.S.C. § 2241).
“Habeas corpus petitions must meet heightened pleading requirements[.]”
McFarland v. Scott, 512 U.S. 849, 856 (1994). A petition is required to “specify all
the grounds for relief available to the petitioner [and] state the facts supporting
each ground.” Rule 2(c)(1) and (2) – Rules Governing Section 2254 Cases (applicable
through Rule 1(b) to petitions under 28 U.S.C. § 2241). “Federal courts are
authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face[.]” McFarland, 512 U.S. at 856; Siers v. Ryan, 773 F.2d 37, 45
(3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). Dismissal without the filing of an
answer is warranted “if it appears on the face of the petition that petitioner is not
entitled to relief.” Siers, 773 F.2d at 45 (3d Cir. 1985). See also McFarland, 512
U.S. at 856; United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas
petition may be dismissed where “none of the grounds alleged in the petition
would entitle [the petitioner] to relief[.]”).
III. Discussion
A federal court has subject matter jurisdiction under § 2241(c)(3) if two
requirements are satisfied: (1) the petitioner is “in custody,” and (2) the custody is
“in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989).
Here, the petition demonstrates Dunbar was not in custody when he filed it,
and that he has commenced this proceeding because he anticipates he will be
detained if he appears for a court-ordered probation revocation hearing. The
“restraints” of which he complains are not contemplated by the federal habeas
statute. See Strout v. Main, Civ. 04-40, 2004 WL 1571768, at *3 (D.Me. July 13,
2004) (stating that although petitioner’s rights may be “impacted by the civil
protection order[ ] … [of which he complains, he was not] ‘in custody’ within the
meaning of § 2254” under the PFA order).
While federal habeas review may be available to challenge the legality of
state court judgments which are not criminal convictions, such as a challenge to a
state court order of civil commitment of a person to a mental institution, see Duncan
v. Walker, 533 U.S. 167, 176 (2001) (citing Francois v. Henderson, 850 F.2d 231 (5th
Cir. 1988)), in this case the § 2241 petition does not allege circumstances indicating
Dunbar is “in custody.”
IV. Conclusion
For the above reasons, it is recommended the petition be dismissed with
prejudice as the Court lacks subject matter jurisdiction as Dunbar was not “in
custody” at the time he filed the petition. It is further recommended Dunbar’s IFP
Motion be denied as moot.
Dunbar is permitted to file written specific Objections to this Report and
Recommendation to the assigned United States District Judge. In accordance with
28 U.S.C. § 636(b)(1), Fed. R .Civ. P. 72(b)(2), and LCvR 72.D.2, Dunbar, must file
written objections, if any, to this Report and Recommendation by May 19, 2025.
He is cautioned failure to file Objections within this timeframe “will waive the right
to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011) (quoting
Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long
Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review
when no timely and specific objections are filed as limited to review for plain error).
DATED this 5th day of May, 2025.
BY THE COURT:
s/Christopher B. Brown
Christopher B. Brown
United States Magistrate Judge
cc: DYLAN P. DUNBAR
808 1/2 W Smithfield St.
Mt. Pleasant, PA 15666