Ethel Kravitz v. Commonwealth of Pennsylvania, United States of America Ex Rel. Kravitz, Ethel v. Commonwealth of Pennsylvania, Nos. 76-1390, 76-1599

546 F.2d 1100

• Court: Court of Appeals for the Third Circuit
• Decided: February 23, 1977
• Docket: 1100
• Status: Published

Opinions

OPINION OF THE COURT

MEANOR, District Judge.

Ethel Kravitz, petitioner and plaintiff below and twice appellant here, was convicted in 1959 of the second degree murder of her husband. Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960), cert. den. 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961). Following that, affirmance of her conviction, appellant petitioned the United States District Court for the Middle District of Pennsylvania for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. That court denied her petition and the denial was affirmed by this court. In the Matter of Ethel Kravitz, 358 F.2d 734 (3d Cir. 1966).¹ In affirming, this court noted that all the contentions but one were devoid of merit. That issue involved the claim that incriminating statements had been admitted at the trial which had been procured from petitioner by police interrogation after focus upon her as the probable killer without being preceded by the advice that she had the right to remain silent or to have counsel present. With respect to this question, this court affirmed the denial of the petition because of a failure to exhaust state remedies. As to all other issues, the district court’s denial was affirmed on the merits.

Thereafter, Mrs. Kravitz returned to the Pennsylvania courts. By this time, she was on parole. It was held, inter alia, that her failure to raise previously her contention that her conviction was invalid because of the admission of inculpatory statements precluded further litigation. Commonwealth v. Kravitz, 441 Pa. 79, 269 A.2d 912 (1970).

Petitioner then returned to the federal court, this time in the Eastern District of Pennsylvania, and filed two actions. By this time, she had been released from parole. On September 23, 1975, she filed a complaint against the Commonwealth of Pennsylvania and its Governor and Attorney General seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that her conviction was “null and void.” Jurisdiction was sought to be predicated on 28 U.S.C. § 1331(a) and § 1343(3) and (4) with the claim arising under 42 U.S.C. § 1983. This action was dismissed without opinion.

On the day following the filing of the complaint described above, Mrs. Kravitz filed her second petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254, naming the Governor, ,the Attorney General and the Commonwealth as respondents. The district court, adopting a magistrate’s report, held that since Mrs. Kravitz, at the time of filing her petition, had been discharged from parole, she was no longer in custody and denied the petition. She now appeals from both adverse judgments. We shall first discuss the denial of her second petition for habeas corpus.

I

28 U.S.C. § 2241 provides in pertinent part:

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(c) The writ of habeas corpus shall not extend to a prisoner unless—

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(3) He is in custody in violation of the Constitution or laws or treaties of the United States .

28 U.S.C. § 2254(a) provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

The requirement that the petitioner be in custody before the writ will lie has been given a broad construction providing the federal writ with an expansive reach. Besides those in actual confinement, the custody prerequisite has been held to encompass those on probation, United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420 (3d Cir. 1975); United States ex rel. De Rosa v. Superior Court, 379 F.Supp. 957 (D.N.J. 1974); on parole, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) and those on bail, Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). As a reading of these cases will show, their extensions of the writ are premised upon the restraints of liberty inherent in the usual conditional release of probation, parole and bail.

The custody prerequisite to the issuance of the federal writ has never been held satisfied by one who, like this petitioner, at the time of filing the petition for the writ, has been unconditionally released. Noll v. Nebraska, 537 F.2d 967 (8th Cir. 1976); Note, Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1077 (1970). The same result obtains under 28 U.S.C. § 2255. That statute, which in effect provide habeas relief for those convicted of federal crimes,² also precludes relief except for one “in custody.” In both United States v. Bradford, 194 F.2d 197 (2d Cir.), cert. denied 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371 (1952) and United States v. Lavelle, 194 F.2d 202 (2d Cir. 1952), applicants had been unconditionally released from service of the federal sentences they sought to attack under § 2255. In both cases, the Second Circuit held that the district court was without jurisdiction to entertain the applications since, at the time they were filed, the petitioners were no longer “in custody.” Obviously, this construction of the custody requirement is equally applicable to § 2254.³ It is plain that the petition before us, having been filed at a time when petitioner had been unconditionally released from custody, was without the jurisdiction of the district court.

The thought has been advanced that Mrs. Kravitz’ prior petition, dismissed in part on the merits and in part for lack of exhaustion of state remedies, relieves her of meeting the present custody requirement at the time of filing the petition under review. This is premised on the lack of mootness of her claim. We agree that her claim is not moot, for she alleges sufficient collateral consequences flowing from her conviction to foreclose that issue.⁴ But our statutes conferring habeas jurisdiction do not confer power to entertain claims on the ground that they are not moot. They authorize jurisdiction only where the petitioner is “in custody.” Whatever may be the scope of a district court’s power to retain jurisdiction in a habeas matter pending further state proceedings,⁵ no attempt to exercise retention of jurisdiction was made in connection with the first petition and such retention was not sought.⁶ We hold that this petitioner’s second petition was subject to the requirement of existing custody at the time of its filing — a prerequisite that she has not met. Hence, the judgment dismissing the petition is affirmed.⁷

II

We also affirm the dismissal of the complaint predicated upon 42 U.S.C. § 1983. The Commonwealth of Pennsylvania is immune from suit under the Eleventh Amendment. Myer v. New Jersey, 460 F.2d 1252 (3d Cir. 1972). The Governor and Attorney General named in the complaint were not in office when the alleged unconstitutional conduct occurred and it is not averred that they personally had anything to do with it. Under these circumstances, no claim for relief is stated against them. Carter v. Chief of Police, 437 F.2d 413 (3d Cir. 1971).

The judgments under review are affirmed.

1 . There was intervening Pennsylvania litigation as a result of which Mrs. Kravitz was denied any share of her husband’s estate. In re Kravitz’ Estate, 418 Pa. 319, 211 A.2d 443 (1965).

2 . United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952).

3 . This court has recognized that one unconditionally released from federal custody may not thereafter initiate an attack upon his federal sentence under § 2255. United States ex rel. Bogish v. Tees, 211 F.2d 69, 71 (3d Cir. 1954).

We have also held that the custody requirements of § 2241 and § 2255 are the same. United States ex rel. Wojtycha v. Hopkins, supra, 517 F.2d at 424; United States v. Washington, 341 F.2d 277, 280 (3d Cir.), cert. denied 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d 89 (1965).

4 . Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). In Carafas, the petitioner filed while in custody, but was unconditionally released following a court of appeals decision and before certiorari was sought. It was held that once federal habeas jurisdiction attached, unconditional release did not require a determination of mootness since there were sufficient collateral consequences to perpetuate a controversy.

5 . 28 U.S.C. § 2343 (1970) empowers the court to “dispose of the matter as law and justice require.” This court recently ordered a district court to retain jurisdiction of a state prisoner habeas petition, pending an identification hearing in the state courts, after a finding that the constitutional right to such a hearing out of the presence of the jury had been denied. United States ex rel. Fisher v. Driber, 546 F.2d 18 (3d Cir. 1976).

6 . It does not appear that, with respect to the initial petition, it was urged that exhaustion was inapplicable since further state remedies were procedurally foreclosed. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Our decision is not affected by the proposition that, in retrospect, the exhaustion ruling may have been inaccurate. We deal with power to entertain a petition for the writ, and such a petition may not be lodged unless the custody requirement is satisfied at the time of filing.

7 . We see no need to discuss under what circumstances, if at all, a district court may retain jurisdiction of a habeas petition pending exhaustion of available state remedies.