Spence v. Venango Cnty. Court of Common Pleas

GREGORY RICHARD SPENCE, Petitioner, v. VENANGO COUNTY COURT OF COMMON PLEAS, Respondent.

Civil Action No. 12-107 Erie

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: July 3, 2014

Magistrate Judge Susan Paradise Baxter

OPINION AND ORDER¹

Before the Court is a petition for a writ of habeas corpus filed by Gregory Richard Spence pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the petition is dismissed and a certificate of appealability is denied.

A. Relevant Background

Spence, who currently is on bail, is facing trial before the Court of Common Pleas of Venango County for: Count One, violating 75 Pa.C.S. § 3802(c) (Driving Under the Influence of Alcohol - Highest Rate of Alcohol); Count Two, violating 75 Pa.C.S. § 3802(a)(1) (Driving Under the Influence of Alcohol or Controlled Substance - General Impairment); and Count Three, violating 75 Pa.C.S. § 3714 (Careless Driving). He filed with the Court of Common Pleas a pre-trial motion in which he contended that he was entitled to be tried by a jury on Count One pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Sections Six and Nine of the Pennsylvania Constitution. [ECF No. 14-1 at 1-2]. The Court of Common Pleas denied his motion. It held:

Defendant asserts that because the DUI charge at Count 1 places him in jeopardy of significant administrative and financial penalties over and beyond the possible jail term he is entitled to a jury trial under the Pennsylvania and Federal Constitutions.

This issue has been squarely addressed by the Superior Court in Commonwealth v. Kerry, 906 A.2d 1237 (Pa.Super. 2006). There, the court stated that "by setting the maximum authorized prison term at six months, the Legislature categorized the violation of § 3802(a)(1) as petty for purposes of a defendant's jury trial rights." Id. at 1239. Defendant is charged under § 3802(c) at Count 1; however, similar to § 3802(a)(1), the maximum penalty for a violation of this provision is set forth at 75 Pa.C.S. § 3803(b)(2), which provides:

An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has no prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section 3804.

[Emphasis added].

Thus, having set the maximum term of imprisonment at six months, the legislature has clearly made the determination that a violation of § 3802(b) falls into the category of "petty" offenses, for which no right to a jury trial exists. Moreover, the existence of fines and administrative penalties beyond the jail term itself does not change our analysis. The Superior Court has made clear in Kerry that the six month maximum jail term is a bright line beneath which no right to a jury trial exists. Defendant offers not a single Pennsylvania authority which suggests a different conclusion, and counsel's personal conclusions as to the merit of the Superior Court's reasoning are no substitute for binding precedent.

[ECF No. 14-1 at 8-9].

Because the Court of Common Pleas' order denying the motion for a jury trial was interlocutory, it was not immediately appealable. Spence asked the court to amend its order to include language stating the importance of the question involved. According to Spence, if the court had granted his request, he could have filed a Petition for Permission to Appeal under Chapter 13 of the Pennsylvania Rules of Appellate Procedure. The Court of Common Pleas denied his request and, therefore, Spence's option was to file a Petition for Review under Chapter 15 of the Pennsylvania Rules of Appellate Procedure, which he submitted to the Superior Court of Pennsylvania. That court issued a one-sentence denial ofthe petition. Spence then filed a Petition for Review with the Supreme Court of Pennsylvania, which denied it in a one-sentence order. [ECF No. 14-2 at 1-22].

Spence next filed with this Court his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [ECF No. 1]. He names as Respondent the Court of Common Pleas. Spence seeks an order from this Court declaring that he is being held in custody in violation of the Sixth and Fourteenth Amendments; that he is charged at Count One with a serious criminal offense to which the right to a jury trial attaches; and, that the Court of Common Pleas must either grant him a trial by jury on Count One or release him from custody on that count. [ECF No. 1 at 4].

Spence has filed supplemental briefing [ECF Nos. 14 and 17], and Respondent² has filed its response [ECF No. 15 and 18].

B. Discussion

"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 before a state judgment is rendered, but only in very limited circumstances. Brian R. Means, FederalHabeas Manual § 9C:2 (2014), available at Westlaw FEDHABMAN ("If ... the petitioner is in custody pursuant to something other than a judgment of a state court (e.g., pre-trial detention, pre-trial bond order, awaiting extradition, he may proceed under 28 U.S.C.A. § 2241.") (emphasis in original). "[T]hat jurisdiction 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).

Section 2241 provides in relevant part: "The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States[.]" 28 U.S.C. § 2241(c)(3) (emphasis added). Thus, under this statute, a state criminal defendant has the mechanism in a federal habeas action to challenge the legality of his pre-trial confinement by arguing that he should not be in pre-trial custody in the first place because, for example: (1) his upcoming trial violates his rights under the Double Jeopardy Clause, see, e.g., United States v. Webb, 516 F.3d 1034 (3d Cir. 1975); or, (2) he is being deprived of his constitutional right to a speedy trial, see, e.g., Braden v. 30^th Judicial Cir. Ct., 410 U.S. 484, 492-93 (1973); or, (3) the trial court has unconstitutionally denied or revoked bail, see, e.g., Atkins v. Michigan, 644 F.2d 543, 550 (6^th Cir. 1981).

Spence's case is not similar to the aforementioned types of cases, including Webb, which is the case upon which he relies. His claim before this Court does not implicate the constitutionality of his pre-trial custody. For this reason, he has not convinced this Court that it has jurisdiction to consider the claim that he raises here in a § 2241 pre-trial habeas petition. At this time, all that Spence can argue is that if he is convicted at Count One that his post-conviction custody would be unconstitutional because his right to a jury trial was (allegedly) violated. But as Respondent points out, it is purely speculative whether Spence will be convicted at Count One. He may not be, which is why his request for federal habeas relief in this Court is premature. For this reason alone, this case must be dismissed.

Alternatively, even if this Court has jurisdiction to consider Spence's jury trial claim under § 2241, he still must exhaust his remedies with respect to that claim in state court. "The state court exhaustion requirement is mandated by statute under 28 U.S.C. § 2254(b) and has developed through decisional law in applying principles of comity and federalism as to claims brought under 28 U.S.C. § 2241." Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986) (citing Braden, 410 U.S. at 490-91). See also Moore, 515 F.2d at 442; Federal Habeas Manual § 9C:1 and § 9C:2. The exhaustion requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842-49 (1999); Parker v. Kelchner, 429 F.3d 58, 61 (3d Cir. 2005) ("Exhaustion addresses federalism and comity concerns by affording the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.") (internal citations and quotations omitted). The petitioner carries the burden of proving exhaustion of all available state remedies. See, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).

Spence has not met his burden. He contends that he has exhausted his state court remedies because he filed petitions for review seeking an interlocutory appeal in the Superior Court and the Supreme Court of Pennsylvania. Respondent counters that Spence's appeal to the state appellate courts was premature and, therefore, they did not rule on the merits of his claim. Importantly, Respondent also points out that since Spence will be able to raise his claim to the state appellate courts on direct appeal in the event that he is convicted at Count One, he still has state court remedies available to him. Therefore, Respondent asserts, this Court cannot conclude that Spence has exhausted his claim.

Respondent's position is more persuasive. First, in order to show that he has satisfied the...