UNITED STATE DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DWIGHT BAKER, :

Petitioner :

CIVIL ACTION NO. 4:04-2389

v. :

(MCCLURE, D.J.)

PENNSYLVANIA BOARD OF : (MANNION, M.J.)

PROBATION AND PAROLE,

and GERALD J. PAPPERT, :

Attorney General of 

Pennsylvania, :

Respondents :

REPORT AND RECOMMENDATION

On November 1, 2004, the petitioner, an inmate formerly incarcerated

at the State Correctional Institution-Huntingdon, Pennsylvania, filed a petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). The

petitioner also filed an application to proceed in forma pauperis, which was

denied upon review of the petitioner’s financial documentation. He filed the

appropriate filing fee, and a show cause order issued on January 11, 2005.

(Doc. No. 5). The petitioner challenged his continued incarceration, claiming

that he had served his maximum sentence, and that the Department of

Corrections and the Parole Board had miscalculated his sentence.

After being granted extensions of time in which to do so, the

respondents filed a response on February 17, 2005. (Doc. No. 9). The

petitioner did not file a reply to the response.

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The petitioner stated that on or about February 18, 1978, he was

sentenced to 3 to 20 years incarceration for robbery. His maximum sentence

was to expire on August 18, 1997. He was paroled on February 19, 1981,

and later reincarcerated as a technical violator (firearms charge) on August

27, 1982. His parole violation caused his maximum sentence date to be

adjusted to April 23, 1999.

The petitioner was again paroled, and on December 16, 1988, he was

arrested for manslaughter. He pled guilty to the charge and was sentenced to

5 to 10 years incarceration. The petitioner was subsequently reparoled

several times. His last parole attempt ended on May 19, 2003, when he was

again arrested as a technical violator. 

At one point the Parole Board calculated the petitioner’s maximum

release date to be August 29, 2005. The respondents conceded that this date

was incorrect, and that the correct maximum release date would be April 5,

2005.

This court contacted the State Correctional Institution at Huntingdon on

May 24, 2005, at which time the Institution’s Record’s Clerk, Andrea

Wakefield, advised that the petitioner had been released on April 5, 2005,

having served his complete sentence. The petitioner did not advise the court

that he had been released, nor did he provide the court with a new address.

In order for a district court to have jurisdiction under 28 U.S.C. § 2254,

two conditions must be met: (1) the petitioner must be “in custody” pursuant

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to a State court judgment, and (2) the custody “is in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);

Maleng v. Cook, 490 U.S. 488, 490 (1989). Furthermore, the exercise of

judicial power depends upon the existence of a “case or controversy.” U.S.

CONST. Art. III, § 2; Lewis v. Continental Bank Corp., 494 U.S. 472 (1990).

“This means that, throughout the litigation, the plaintiff must have suffered, or

be threatened with, an actual injury traceable to the defendant and likely to be

redressed by a favorable decision.” Spencer v. Kemna, 523 U.S.1, 7(1998).

In Spencer, the United States Supreme Court held that a habeas

petitioner’s challenge to his parole revocation became moot once the

petitioner was released at the end of his sentence. The Supreme Court noted

that although the district court did, in fact, have jurisdiction to hear the claim

when it was first initiated, because the petitioner was then “in custody,” that

the petitioner’s subsequent release “caused the petition to be moot because

it no longer presented a case or controversy under Article III, § 2, of the

Constitution.” Spencer, 523 U.S. at 7; See also Husovsky v. Lavan, 2004 WL

2316635 (E.D.Pa.)(habeas petition asserting an Ex Post Facto challenge to

a parole denial became moot when the petitioner was paroled because the

case no longer presented a live controversy); Mathews v. Hendricks, 2005 WL

1115967 *3 (D.N.J.))(holding likewise). Therefore, because the petitioner has

served his maximum sentence, and is no longer in custody, the petition for

writ of habeas corpus should be dismissed as moot. 

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For the foregoing reasons, IT IS RECOMMENDED that the petition for

writ of habeas corpus (Doc. No. 1) be DISMISSED as moot.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States Magistrate Judge

Dated: May 24, 2005

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