Kozak v. Pa
| Decision Date | 29 September 2017 |
| Docket Number | Civil No. 3:14-cv-984 |
| Parties | MICHAEL KOZAK, Petitioner v. COMMONWEALTH OF PA, et al., Respondents |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Mariani)
Presently before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 10) filed by Petitioner Michael Kozak, who, at the time this petition was filed, was incarcerated within the Pennsylvania Department of Corrections. Since the filing of his petition, Kozak has been released from custody. He challenges his conviction in the Court of Common Pleas of Luzerne County. (Doc. 10). The petition is fully briefed and ripe for disposition. For the reasons that follow, the petition will be denied.
The circumstances surrounding Kozak's arrest and conviction were summarized as follows in the trial court opinion that was issued following Kozak's direct appeal from his judgment of sentence:
On May 19, 2006 and May 25,2006, [Kozak] obtained and sold crack cocaine to a police confidential informant, Daniel Pinkowsky, at Pocono Trailer Court in Plains Township. [Kozak] did not deny that the transactions took place, but rather, claimed that he was entrapped as discussed in more detail below. The first four counts of which he was found guilty are the drug counts for which the entrapment defense was raised. The fifth count, fleeing or attempting to flee an officer, occurred on May [25], 2006. On that date, a third transaction between [Kozak] and Pinkowsky was scheduled to take place. However, prior to the meeting, [Kozak] coincidentally happened to enter the parking lot at the Sheetz and Dairy Queen on Route 315, where Pinkowsky was meeting with Plains Township Police and drug enforcement agents from the Pennsylvania Attorney General's Office. Upon seeing Pinkowsky with the police, [Kozak] drove his vehicle out of the parking lot over a curb and down an embankment onto Route 315 where he proceeded north until he was apprehended. During the pursuit, [Kozak] was seen throwing yellow baggies out of the driver's side window. Two baggies were recovered and were determined to be crack cocaine.
See Kozak v. Commonwealth of Pennsylvania, et al., No. 3:12-cv-1153 (M.D. Pa.) at Doc. 12-1, pp. 41-42, Trial Court's 1925(a) Opinion.
Kozak was charged with two counts of possession of a controlled substance, possession with intent to deliver a controlled substance, two counts of delivery of a controlled substance, and one count of fleeing or attempting to elude an officer. (Commonwealth v. Kozak, 2014 WL 10795192 (Pa. Super. 2014)). On May 7, 2007, a jury sitting in the Court of Common Pleas of Luzerne County convicted Kozak of two counts of possession of a controlled substance, but deadlocked on the remaining counts. (Id.). Kozak filed an appeal to the Pennsylvania Superior Court in which he argued that double jeopardy principles prohibited him from being retried on the remaining charges, but the Superior Court rejected his claims. (Id.). On October 15, 2008, a second jury convicted Kozak of the remaining charges. (Id.). On December 11, 2008, Kozak was sentenced to a term of incarceration of three (3) to seven (7) years. (Id.).
Kozak filed a direct appeal from his judgment of sentence with the Pennsylvania Superior Court in which he argued that the Commonwealth had engaged in entrapment and the verdict was against the weight of the evidence. (Doc. 21, pp. 147-160). On October 5, 2009, the Pennsylvania Superior Court rejected Kozak's claims and affirmed his judgment of sentence. (Id.; see also 137 MDA 20091). Kozak then filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which was denied by Order dated September 8, 2010. (See 786 MAL 2009).
On December 16, 2010, Kozak filed a petition under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. ANN. § 9541 et seq. (Commonwealth v. Kozak, CP-40-CR-0003063-2006; CP-40-CR-0003064-2006; and CP-40-CR-0002559-2006).2 The PCRA Petition raised claims of ineffective assistance of counsel, prosecutorial misconduct, and insufficiency of the evidence. On July 20, 2011, the PCRA Court dismissed the PCRA Petition, but then vacated its Order on August 5, 2011. (Id.). Even though the PCRA Court vacated its Order denying the PCRA Petition such that the PCRA Petition remained pending in that Court, on August 26, 2011, Kozak filed a Notice of Appeal from the July 20, 2011 Order denying the Petition to the Pennsylvania Superior Court. (1633 MDA 2011). On April 11, 2012, the Pennsylvania Superior Court quashed Kozak's appeal based upon the fact that the Order from which he appealed had been vacated, and there had been no subsequent trial court order disposing of Kozak's PCRA Petition, and thus there was no final order from which Kozak could appeal. (Id.; see also Commonwealth v. Kozak, 1633 MDA 2011, Pennsylvania Superior Opinion dated April 11, 2012).
On May 1, 2012, Kozak filed a Supplementary PCRA Petition. (Id.). On July 3, 2012, a Luzerne County Court of Common Pleas Judge appointed an attorney to represent Kozak in his PCRA proceedings. (Id.). On July 13, 2012, Kozak filed a Second Motion for Post-Conviction Relief. (Id.).
On May 17, 2013, a PCRA hearing was held and, on June 5, 2013, the PCRA Petition was denied. (Id.). On June 24, 2013, counsel for Kozak filed a Notice of Appeal to the Pennsylvania Superior Court. (Id.). On May 7, 2014, the Superior Court remanded the matter to the trial court for a determination of whether counsel had abandoned Kozak. (See 1357 MDA 2013).
On May 22, 2014, while the matter was pending before the Court of Common Pleas of Luzerne County, Kozak filed the instant federal habeas petition.
On June 6, 2014, the Luzerne County Court of Common Pleas Judge ordered counsel to continue representation of Kozak, and the record was returned to the Superior Court. (Commonwealth v. Kozak, CP-40-CR-0003063-2006).
On October 15, 2014, the Pennsylvania Superior Court affirmed the denial of the PCRA Petition. (Id.). On November 14, 2014, Kozak filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. (See 837 MAL 2014). On May 4, 2015, the Pennsylvania Supreme Court denied the Petition for Allowance of Appeal. (Id.).
As a preliminary matter, the Court must address whether the instant petition has been rendered moot by virtue of Kozak's release from custody. Article III of the Constitution provides that the "judicial power shall extend to. . . cases. . . [and] to controversies." U.S. Const. Art. III, § 2. This grant of authority embodies a fundamental limitation restricting the federal courts to the adjudication of "actual, ongoing cases or controversies." Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 193 (3d Cir. 2001). The mootness doctrine is centrally concerned with the court's ability to grant effective relief. "If developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). "Moreover, the requirement that an action involve a live case or controversy extends through all phases of litigation, including appellate review." County of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001) (citing Khodara Envtl., Inc., 237 F.3d at 193; Lewis v. Continental Bank Corp., 494 U.S. 472 (1990)). Once a petitioner has been released from custody, "some continuing injury, also referred to as a collateral consequence, must exist for the action to continue." Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009). Consequently, in the absence of continuing collateral consequences, a federal district court does not have jurisdiction to review moot habeas claims. North Carolina v. Rice, 404 U.S. 244, 246 (1971) (). It is the petitioner's burden to show that collateral consequences exist to avoid having the case dismissed as moot. Spencer v. Kemna, 523 U.S. 1, 7 (1998).
The Supreme Court in Spencer held that release of a petitioner from custody on a parole violator term deprived federal courts of the power to act. Significantly, the Court found that there were no "collateral consequences" remaining after expiration of the parole violator term sufficient to animate the matter with a case or controversy capable of concrete redress, explaining that federal courts "are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." Spencer, 523 U.S. at 18. See also United States v. Kissinger, 309 F.3d 179, 181-82 (3d Cir. 2002) (); Lane v. Williams, 455 U.S. 624, 632-34 (1982); Hagwood v. Grondolsky, 2009 WL 455499, at *2 (D.N.J. Feb. 19, 2009) ().
Since the filing of this action, Kozak has been released from custody on parole.3 See Victim Information and Notification Everyday, available at https://www.vinelink.com/. The amended habeas petition does not contain a prayer for relief. However, in the initial petition, Kozak requested compensation and he requested that the Court vacate his sentence. (Doc. 1, p. 14). Thus, the Court assumes that Kozak seeks the same relief. The Court notes that Kozak may not receive monetary compensation in response to his claims. See Preiser v. Rodriguez, 411 U.S. 475, 495 (1973) ().
Furthermore, it appears that Kozak has been afforded the release sought in this...
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