IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANDREW W. STEWART, :

:

Petitioner : CIVIL NO. 4:CV-04-0974

:

v. : (Judge Jones)

:

COMMONWEALTH OF :

PENNSYLVANIA, :

Respondent :

ORDER

November 28, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Petitioner, Andrew W. Stewart (“Petitioner or “Stewart”), an inmate formerly

incarcerated at the Centre County Prison, filed the above-captioned petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 (“the Petition”). (Rec. Doc. 1). Petitioner

has paid the required filing fee. In accordance with United States v. Miller, 197 F.3d

644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), an Order was

issued advising the Petitioner that: (1) he could have the document ruled on as filed,

that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his

ability to file a second or successive petition absent certification by the court of

appeals, or (2) withdraw his petition and file one, all-inclusive § 2254 petition within

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 1 of 10
-2-

the one-year statute of limitations period prescribed by 28 U.S.C. § 2244(d). (Rec.

Doc. 5). Stewart responded by submitting a Notice of Election on July 29, 2004, in

which he opted to have his petition considered as filed. (Rec. Doc. 6). Thereafter, the

Court issued an Order to show cause, directing Respondent to respond to the petition.

(Rec. Doc. 7). On September 16, 2004, Respondent filed an answer to the petition, and

supporting memorandum and exhibits. ( Rec. Docs. 14-16). No traverse has been

filed. The Petition is presently ripe for disposition and, for the reasons that follow, the

Petition is denied. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 4, 1995, after a jury trial, Stewart was convicted of two counts of

insurance fraud, one count of receiving stolen property, one count of theft by

deception, and one count of criminal attempt to commit theft. (Rec. Doc. 16, Ex. C,

Verdict Slip). On July 7, 1995, Stewart was sentenced to two concurrent terms of

incarceration of eleven and one-half to twenty-three and one-half months. (Rec. Doc.

16 Exs. D, E, Sentencing Orders). Stewart filed a post-sentence motion and a motion

for reconsideration of sentence, which were denied by the trial court in an Order dated

November 30, 1995. (Rec. Doc. 16, Ex. G, Opinion in Support of Order dated

November 30, 1995). 

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 2 of 10
-3-

On December 28, 1995, Stewart filed a direct appeal to the Pennsylvania

Superior Court, from the denial of his motion for a new trial. He raised the following

grounds for relief:

(1) The trial court erred in overruling Defendant's trial counsel's objection

to the introduction of certain evidence and testimony.

(2) The trial court err when it failed to grant the Defendant an evidentiary

hearing to determine if his post-trial motions regarding ineffectiveness of

counsel were of merit. 

(3) The Defendant was denied his constitutional right to testify either

because of trial court error or ineffective assistance of counsel. 

(Rec. Doc. 16, Ex. H, Opinion of Superior Court). By Memorandum Opinion dated

December 19, 1997, the Pennsylvania Superior Court affirmed the judgment of

sentence, but also ruled that the ineffective assistance of counsel claims had arguable

merit and remanded the case for an evidentiary hearing on these claims. (Rec. Doc. 16,

Ex. H, Opinion of Superior Court); See Commonwealth v. Stewart, 706 A.2d 1259

(Pa. Super 1997)(unpublished memorandum). On July 24, 1998, the Pennsylvania

Supreme Court denied Stewart's petition for allowance of appeal. See Commonwealth

v. Stewart, 725 A.2d 1220 (Pa. 1998). 

On October 9, 1998, the trial court held an evidentiary hearing on Stewart's two

ineffective assistance of counsel claims raised in his direct appeal. On June 23, 1999,

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 3 of 10
-4-

the trial court issued an Opinion and Order, denying Stewart's motion for new trial

based on claims of ineffective assistance of counsel, (Rec. Doc. 16, Ex. J). On July 20,

1999, Stewart filed a direct appeal to the Pennsylvania Superior Court from the trial

court's denial of his ineffective assistance of counsel claims. By Memorandum

Opinion dated August 30, 2000, the Pennsylvania Superior Court affirmed the trial

court's decision. See Commonwealth v. Stewart, 764 A.2d 1129 (Pa. Super

2000)(unpublished memorandum); (Rec. Doc. 16, Ex. K). By Order dated March 15,

2001, the Pennsylvania Supreme Court denied Stewart's petition for allowance of

appeal. Commonwealth v. Stewart, 771 A.2d 1283 (Pa. 2001); (Rec. Doc. 16, Ex. L).

By Order dated April 4, 2001, the trial court ordered Stewart to commence

service of his sentence on May 4, 2001. (Rec. Doc. 16, Ex. M). 

On August 21, 2001, Stewart filed a counseled petition under the Pennsylvania

Post Conviction Relief Act (“PCRA”), 42 Pa. Const. Stat. §§ 9541-9546. (Rec. Doc.

16, Ex. N). In his Petition, Stewart asserted three claims of ineffectiveness of counsel.

(Rec. Doc. 16, Ex. N). Following a hearing, in an Opinion and Order dated May 29,

2002, the PCRA court dismissed the Petition as untimely. (Rec. Doc. 16, Ex. Q). 

On June 19, 2002, Stewart filed an appeal from the PCRA Court's dismissal to

the Pennsylvania Superior Court. He raised the following grounds for relief; 

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 4 of 10
1 Although the Pennsylvania Superior Court did not address Stewart's

second issue, they did point out in a footnote that Stewart made no

attempt to stay the running of his sentence and “it may be that upon

remand Stewart can no longer establish any entitlement to relief. See

42 Pa. C.S.A. § 9543(a)(1)(i); Commonwealth v. Ahlborn, 699 A.2d

-5-

(1) Did the lower court err in determining that the PCRA court was

untimely filed and dismiss for an erroneous reason?

(2) Did the lower court in determining to dismiss the PCRA as untimely

so to ignore established law as to use of this disposition to cause Andrew

Stewart's sentence of parole to end before an adjudication on the merits?

Commonwealth v. Stewart, No. 971 MDA 2002; (Rec. Doc. 16, Ex., R, Superior

Court Opinion). By Memorandum Opinion dated May 8, 2003, the Pennsylvania

Superior Court determined that Stewart's original judgement of sentence did not

become final for PCRA purposes until June 13, 2001; ninety days after the

Pennsylvania Supreme Court denied allowance of appeal from the Superior Court's

August 30, 2000 Opinion and when the period to file a petition for writ of certiorari

with the United States Supreme Court expired. (Rec. Doc. 16, Ex. R, p. 6). As a

result, the Court found that Stewart's PCRA petition, filed on August 21, 2001, was

timely filed within one year of final judgment. (Rec. Doc. 16, Ex. R, p. 7). The

Superior Court did not address Stewart's second issue, finding that it had not been

initially advanced before the PCRA Court.1

 Thus, the Superior Court reversed the

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 5 of 10
718, 721 (Pa. 1997). That will have to be determined along with all

other matters relating to eligibility for relief which must be established

by a PCRA petitioner, by the PCRA Court.” (Doc. 16, Ex. R, p. 7). 

-6-

order of the PCRA Court granting the Commonwealth's motion to dismiss the PCRA

petition as untimely, and remanded the case for further proceedings.

On June 12, 2003, the Commonwealth filed a second motion to dismiss the

PCRA petition, arguing that the Defendant was no longer eligible for PCRA relief

because his sentence had expired on April 18, 2003 and he is no longer serving a

sentence of imprisonment, probation or parole for the crime. (Rec. Doc. 16, Ex. S).

Defendant conceded to the Commonwealth's position. (Rec. Doc. 16, Ex. U). By

Opinion and Order dated October 27, 2003, the PCRA court granted the

Commonwealth's motion and dismissed Stewart's PCRA petition. (Rec. Doc. 16, Ex.

V). No appeal was taken from this Order. 

On May 3, 2004, Stewart filed the instant Petition for habeas corpus relief. He

asserts the following grounds for relief: 

(1) Ineffective assistance of trial and appellate counsel. 

(2) PCRA Court erroneously dismissed Petitioner's PCRA petition. 

(Doc. 1, petition). 

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 6 of 10
-7-

DISCUSSION

For a federal court to have jurisdiction over a habeas petition brought by a state

prisoner pursuant to 28 U.S.C. § 2254 the state prisoner must show that he is “in

custody pursuant to the judgment of a State court.” Lackawanna County Dist. Atty.

v. Coss, 532 U.S. 394, 401 (2001) (quoting 28 U.S.C. § 2254(a)). While this “in

custody” requirement is liberally construed, “a petitioner must be in custody under the

conviction he is attacking at the time the habeas petition is filed.” Obado v. New

Jersey, 328 F.3d 716, 717 (3d Cir.2003). The Third Circuit has explained that “[t]he

meaning of ‘custody’ has been broadened so that it is no longer limited in the 

§ 2254(a) context to physical custody alone but also applies where individuals are

subject both to ‘significant restraints on liberty ... which were not shared by the public

generally,’ along with ‘some type of continuing governmental supervision.’ ” Id. at 717

(quoting Barry v. Bergen County Probation Dep't 128 F.3d 152, 160 (3d Cir.1997)).

The Third Circuit elaborated in an earlier decision that “an individual who is required

to be in a certain place--or in one of several places--to attend meetings or to perform

services, is clearly subject to restraints on his liberty not shared by the public

generally.” Barry, 128 F.3d at 161. On the other hand, the Third Circuit has held that

“[t]he payment of restitution or a fine, absent more, is not the sort of ‘significant

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 7 of 10
-8-

restraint on liberty’ contemplated in the ‘custody’ requirement of the federal habeas

corpus statutes.” Obado, 328 F.3d at 718.

Here, at the time Petitioner filed his federal Petition, he was not incarcerated, on

parole, on probation, nor is there an indication that he was otherwise “required to be

in a certain place-or in one of several places-to attend meetings or to perform services”

as part of his 1995 conviction and sentence - the conviction Stewart now attacks. Thus,

the Court cannot entertain the merits of his federal Petition. Even if Petitioner were

attacking his1995 conviction and sentence insofar as it was used to enhance a later

sentence for another crime which Petitioner is now serving, such an attack would be

precluded. The Supreme Court has made clear that “once a state conviction is no longer

open to direct or collateral attack in its own right because the defendant failed to pursue

those remedies while they were available (or because the defendant did so

unsuccessfully), the conviction may be regarded as conclusively valid. If that

conviction is later used to enhance a criminal sentence, the defendant generally may

not challenge the enhanced sentence through a petition under § 2254 on the ground that

the prior conviction was unconstitutionally obtained.” Coss, 532 U.S. at 403-04.

The Supreme Court has recognized two exceptions to this general rule. First, the

Court recognized that a petitioner may challenge his current sentence where it was

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 8 of 10
-9-

“enhanced on the basis of a prior conviction that was obtained where there was a

failure to appoint counsel in violation of the Sixth Amendment.” Id. at 404. “Second,

the Court suggested, but expressly chose not to define, an exception in ‘rare cases in

which no channel of review was actually available to a defendant with respect to a

prior conviction, due to no fault of his own.’” Drakes v. INS, 330 F.3d 600, 605 (3d

Cir.2003) (quoting Daniels v. United States, 532 U.S. 374, 383 (2001)). For instance,

“a state court may, without justification, refuse to rule on a constitutional claim that has

been properly presented to it,” Coss, 532 U.S. at 405 (citing 28 U.S.C. § 2244(d)(1)(B)

(1994 ed., Supp. V)), or “after the time for direct or collateral review has expired, a

defendant may obtain compelling evidence that he is actually innocent of the crime for

which he was convicted, and which he could not have uncovered in a timely manner,”

Coss, 532 U.S. at 405 (citing Brady v. Maryland, 373 U.S. 83, 83 (1963) and 28 U.S.C.

§ 2244(b)(2)(B) (1994 ed., Supp. V)). Neither exception applies here.

Petitioner was represented by counsel at all stages of all proceedings. Further,

Petitioner has not argued that this is one of those “rare cases” where he did not have

a channel of review for his claims, nor could he argue as much. The Petition advances

ineffective assistance of counsel claims based on counsel's decision not to call certain

witnesses at trial. Petitioner had adequate opportunity to raise this issue and other

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 9 of 10
claims in the state courts and, in fact, such issues were previously raised. Thus,

Petitioner is precluded from attacking his 1995 conviction in this Court.

IT IS HEREBY ORDERED THAT:

1. The Petition (Rec. Doc. 1), is DENIED.

2. The Clerk of Court shall CLOSE this case.

3. There is no basis for the issuance of a certificate of

appealability

s/ John E. Jones III 

John E. Jones III

United States District Judge

Case 4:04-cv-00974-JEJ-DB Document 17 Filed 11/28/05 Page 10 of 10