Barnhart v. Commonwealth

• Docket Number: Civil Action 22-1026
• Decision Date: 23 August 2023
• Parties: LEELAND BARNHART, JR, Petitioner, v. COMMONWEALTH OF PA; ATTORNEY GENERAL OF PENNSYLVANIA Mr. Barker-, DISTRICT ATTORNEY OF GREENE COUNTY; and COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

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LEELAND BARNHART, JR, Petitioner, v. COMMONWEALTH OF PA; ATTORNEY GENERAL OF PENNSYLVANIA Mr. Barker-, DISTRICT ATTORNEY OF GREENE COUNTY; and COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, Respondents.

Civil Action No. 22-1026

United States District Court, W.D. Pennsylvania

August 23, 2023

District Judge Christy Criswell Wiegand

REPORT AND RECOMMENDATION

Re: ECF Nos. 3 and 11

MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION

It is respectfully recommended that Respondents' Motion to Dismiss for Lack of Timely Filing (“Motion to Dismiss”), ECF No. 11, be granted, and that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 3, be dismissed as untimely. It is further recommended that a certificate of appealability be denied.

II. REPORT

Leeland Barnhart, Jr. (“Petitioner”) is a former state prisoner proceeding pro se in this action. On May 25, 2012, Petitioner was convicted of a multitude of crimes in the Court of Common Pleas of Greene County in Commonwealth v. Barnhart, Docket Nos. CP-30-CR-485-2011 and CP-30-CR-487-2011 - including, but not limited to, 17 counts of involuntary deviate sexual intercourse with a person less than 16 years of age, in violation of 18 Pa. C.S.A. § 3123(a)(7). ECF No. 3 at 1. See also Docket, Com, v. Barnhart, No. CP-30-CR-485-2011 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-30-CR- 0000485-201 l&dnh=keFcvD7j2SboKgKuDFFzwQ%3D%3D (last visited June 20, 2023)). See also Docket, Com, v. Barnhart, No. CP-30-CR-485-2011 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet7docketNumberAlP-30-CR-0000487-201 l&dnh=YwV7GduwmBb6KZ0jXp4XyA%3D%3D (last visited June 20, 2023)).

It is undisputed that Petitioner no longer is imprisoned. However, as the result of his convictions, Petitioner currently is subject to an obligation to register as a sex offender, and to periodically report to the state police for the rest of his life. ECF No. 14 at 5 and 8; ECF No. 3 at 38; ECF No. 3-2 at 3.

A. Factual Background and Procedural History

The facts surrounding Petitioners' crimes, as adopted by the Pennsylvania Superior Court on direct appeal, are as follows.

The charges against Defendant arose out of events in the summer of 2011. On July 25, 2011, the victim, R.B. (d/o/b 10/[-]/95) left the family home in Carmichaels and moved in with Defendant (d/o/b 5/[-/]1976). Her parents did not know where she was and asked her friend K. if she knew her whereabouts. K. said she thought R.B. might be at “Lee's house”. R.B.'s father went to Defendant's mobile home and asked if he knew where his daughter was. Defendant said she was not there. R.B.'s father told Defendant that R.B. was only 15. R.B.'s parents made fliers and posted them around the neighborhood. They informed the police, the district attorney and Greene County Children and Youth Services (CYS). At some point, the parents got a phone call from a runaway hotline informing them that R.B. had called and asked the hotline to tell her parents she was safe and in good health. After about nine days, CYS located R.B. at Defendant's home. More precisely, a caseworker knocked on Defendant's door and talked to him. After about 45 minutes of conversation, Defendant admitted that R.B. was in the place and brought her out. The caseworker informed the police that R.B. had been found and then took her home to her parents.

After police and CYS personnel interviewed R.B., Defendant was charged with [IDSI], Sexual Assault, Aggravated Indecent Assault, and other sexual offenses. Of great significance in this case is the fact that at the time of these events [,] R.B. was 15 years old. She would not be 16 until the following October. At a separate number, Defendant was charged with Concealing the Whereabouts of a Child, Interfering with the Custody of a Child and related offenses. The two numbers were joined for trial.

Com. v. Barnhart, No. 417 WDA 2013, 2015 WL 7356193, at *1 (Pa. Super. Mar. 17, 2015).

Petitioner initially was sentenced to an aggregate term of imprisonment of 10 i to 21 years on May 25,2012. Id. at *13-14. His sentence was reversed on March 17,2015 by the Pennsylvania Superior Court on direct appeal as violative of Alleyne v. United States, 570 U.S. 99 (2013). Barnhart, 2015 WL 7356193, at *8. ECF No. 3 at 1.

Petitioner sought leave from the Pennsylvania Supreme Court to appeal from the Superior Court's denial of his other grounds for relief. Allocatur was denied on October 7, 2015. Com, v. Barnhart 125 A.3d 1197 (Pa. 2015). The record does not indicate that Petitioner sought a writ of certiorari from the United States Supreme Court.

On April 22, 2016, Petitioner was resentenced by the trial court to an aggregate term of incarceration of 5 to 10 years. See also Docket, No. CP-30-CR-485-2011 and Docket, No. CP-30-CR-487-2011. The new sentence was affirmed by the Superior Court on December 13, 2017. Com. V. Barnhart, 774 WDA 2016, 2017 WL 6348144, at *1 (Pa. Super. Ct. Dec. 13, 2017). Petitioner sought allocatur from the Pennsylvania Supreme Court, but his petition was denied on November 15, 2018. Com, v. Barnhart, 197 A.3d 225, 226 (Pa. 2018).^[1] Once again, the record does not indicate that Petitioner filed a petition for writ of certiorari with the United States Supreme Court. As such, Petitioner's conviction became final 90 days later, on February 13,2019. See U.S. Sup. Ct. R. 13; see also Jenkins v. Sup't of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013) (“On direct review, the Pennsylvania Supreme Court denied Jenkins's petition for allowance of appeal on September 28, 2007.. . . Because Jenkins had ninety days to petition for certiorari to the United States Supreme Court, his conviction became final on December 27, 2007.”).

On November 15, 2019 - 275 days after his conviction became final - Petitioner filed a petition for post-conviction relief pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. Docket, No. CP-30-CR-487-2011; see also ECF No. 3 at 72. The PCRA trial court denied relief on August 17, 2021, based on its conclusion that Petitioner no longer was in custody. Docket, No. CP-30-CR-487-2011. Petitioner did not file an appeal, and the period to do so expired 30 days later, on September 16, 2021. Pa. R.A.P. 903. Respondents concede that the instant Petition was constructively filed on July 13,2022 - 300 days after Petitioner's right to appeal the denial of his PCRA petition lapsed. ECF No. 11 at 3.

On September 7, 2022, Respondents filed their Motion to Dismiss.^[2] ECF No. 11. Petitioner responded in opposition on October 12, 2022. ECF No. 13. The Motion to Dismiss is ripe for disposition.

B. Legal Analysis

1. The custody requirement

Because Petitioner invokes the federal court's jurisdiction, he bears the burden to demonstrate that this case is within this Court's jurisdiction. In other words, Petitioner must affirmatively allege that he was “in custody” at the time of filing his federal habeas petition, and if challenged, Petitioner has the burden of persuading the court by a preponderance of the evidence that the Court has jurisdiction. See United States, v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). See also Brown V. Wenerowicz, No 13-1340, 2013 WL 2404152, at *4 (W.D. Pa. May 31, 2013).

“A federal court has jurisdiction to hear a habeas petition only if the petitioner was ‘in custody pursuant to the judgment of a State court' when the petition was filed.” Piasecki v. Court of Common Pleas, 917 F.3d 161, 165-66 (3d Cir. 2019) (quoting 28 U.S.C. § 2254(a)). 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. at 166. “Thus, custody is the passport to federal habeas corpus jurisdiction.” United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557, 560 (3d Cir. 1971). The United States Court of Appeals for the Third Circuit has explained that “[i]n making a custody determination, a court looks to the date that the habeas petition was filed. Barry v. Bergen Cnty. Prob. Dep't, 128 F.3d 152, 159 (3d Cir. 1997). See also Federal Habeas Manual § 1:4 (“In order to satisfy the custody requirement, the petitioner must be in custody at the time the petition is filed in federal court.”) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).

While not raised in the instant Motion to Dismiss, Respondents assert that Petitioner is not in custody because he no longer is imprisoned or on probation or parole. ECF No. 14 at 1-2. Respondents acknowledge that the Third Circuit has held that prior sex offender registration requirements in Pennsylvania satisfied the custody requirement, Id. at 3-5 (citing, inter alia, Piasecki, 917 F.3d at 165-66), but argue that the current reporting requirements are less onerous, and the conditions under which Petitioner is required to report do not qualify as custody, Id. at 5-9.

Respondents' position has been rejected by at least one other judge within this district. Ackerman v. Pennsylvania, No. 21-91 2022 WL 4082446, at *1-2 (W.D. Pa. Sept. 6, 2022). The briefing in that case appears to have lacked the specifics asserted by Respondents in the present matter. Compare Id. at *2 (“Ackerman provides no information as to the specifics of his registration requirements”) with ECF No. 14 at 4-8 (comparing Pennsylvania's current registration requirements with those in force in Piasecki). Nonetheless, the reasoning in Ackerman remains persuasive in the face of the Third Circuit's controlling precedent articulated in Piasecki. Accordingly, the undersigned concludes that Petition...