Fournier v. Dauphin County Court of Common Pleas et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRANDON S. FOURNIER, 	:
Petitioner 	: 	No. 1:23-cv-00457
:
v. 	: 	(Judge Kane)
:
WARDEN OF SCI BENNER 	:
TOWNSHIP, et al., 	:
Respondents 	:
MEMORANDUM
Currently before the Court is a petition for a writ of habeas corpus under 28 U.S.C. §
2254 filed by pro se Petitioner Brandon S. Fournier (“Fournier”). For the reasons stated below,
the Court will deny Fournier’s petition, decline to issue a certificate of appealability, and direct
the Clerk of Court to close this case.
I. 	BACKGROUND
On August 24, 2017, Fournier was arrested and charged with unlawful contact with a
minor – sexual offenses (18 Pa. C.S. § 6318(a)(1)) and criminal use of a communication facility
(18 Pa. C.S. § 7512(a)) after he and a special agent of the Office of Attorney General’s Child
Predator Section, who was posing as a fourteen (14)-year-old boy, exchanged messages on the
mobile application Grindr in which they agreed to meet for the purpose of engaging in sexual
activity. See Commonwealth v. Fournier, No. 754 MDA 2019, 2020 WL 1181977, at *1–2 (Pa.
Super. Ct. Mar. 11, 2020) (unpublished). A jury trial was held in the Court of Common Pleas of
Dauphin County from September 27–28, 2018, and the jury found Fournier guilty of both
offenses and did not find that the special agent entrapped him. See id. at 2.
The trial court set forth the facts underlying Fournier’s convictions as follows:
On August 24, 2017, Agent [Gordon] Goodrow [(“Agent Goodrow”), a supervisory
special agent with the Office of the Attorney General’s Child Predator Section,]
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had an undercover profile on Grindr, a mobile application that allows men to seek
other men. On this day, Agent Goodrow began to receive messages on the Grindr
app from [] Fournier[,] who [had] initiated contact. Based upon the conversations
between Fournier and Agent Goodrow, Fournier was arrested.
The following is the relevant dialogue exchanged between Agent Goodrow, who
was posing as a fourteen[-]year-old, and Fournier[,] on August 24, 2017, that led to
Fournier’s arrest[:]
Fournier: Cute pic U looking for a good time
Goodrow: Yeah this is my last week before school starts
Fournier: Where u from and u have a clear face pic what u in the mood for
Goodrow: Live in Harrisburg
Fournier: Tbats not far from me any more pics
Goodrow: [picture of boy sitting in driver’s seat of car with his seatbelt on]
Fournier: How old are u
Goodrow: I’ll be 15 in December
Fournier: What u want to dO
Goodrow: I haven’t done anything
Fournier: How are u on here if your 15
[Fournier:] Does your parents no your gay
Goodrow: New to this and don’t know any guys my age
[Goodrow:] No they do t
[Goodrow:] Don’t
[Goodrow:] It’s gotta be a secret
[Goodrow:] My mom would be so upset
[Goodrow:] And her boyfriend would probably be an ass
Fournier: I’m 35 old enough to b your dad let me see some more of you
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Goodrow: Mmmmm showed you a pic???
[Goodrow:] Gotta be careful
[Goodrow:] Don’t know you
[Goodrow:] Can’t get in trouble
* * *
Fournier: Ur parents let u out at 14
[Fournier:] By yourself
Goodrow: My mom works downtown and lets me come with her
[Goodrow:] I went over to city island
[Goodrow:] She will drive me home at 5
[Goodrow:] When she gets off work
* * *
Fournier: If u got head from a guy would u cum fast
* * *
Fournier: Do you want to try it with a guy
Goodrow: Oh really
[Goodrow:] How?
Fournier: Some place outside
[Fournier:] Its up to you I just don’t want to get in trouble for talking to u
* * *
Fournier: Would like to meet up some place
Goodrow: I can walk somewhere
Fournier: Where u want to walk to
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Goodrow: I’m at strawberry square right now getting something to eat
[Goodrow:] I can walk to city island after
Fournier: Ok ill head their now
* * *
Fournier: I’m nervous about meeting up with u because of your age
* * *
Goodrow: If your not into I can understand
Fournier: Ill come meet you quick
[Fournier:] U almost their
Goodrow: Not yet
[Goodrow:] What if your a cop? I’m screwed
Fournier: I’m on my way
[Fournier:] I’m not a cop
[Fournier:] When’s the last time u came
* * *
Goodrow: What if people see us?
Fournier: Ill b their in 6 min
Goodrow: I saw security there this morning
[Goodrow:] I’m just finishing my lunch
Fournier: Ok
Goodrow: What if people see us
Fournier: No one will
[Goodrow:] Really?
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[Fournier:] Ill meet u on 3rd st by stsilons
Goodrow: Where’s that????
* * *
Fournier: I’m here behind stsilons
Goodrow: Where we go then?
Fournier: I know places
Goodrow: Ok cool
[Goodrow:] Can’t get caught
Fournier: Were not going to
Goodrow: Oh man
[Goodrow:] I’m excited
Fournier: U coming or what
Goodrow: Leaving now
Fournier: Hurry up
Goodrow: What you want to do first [smirking face emoji]
[Goodrow:] Damn
[Goodrow:] On my way
Fournier: look at you see what u think of me and see what u want to do
* * *
Fournier: Ur not going to get into trouble and I’m not going to hurt u
Goodrow: But you won’t even tell me what you want to do and you could def hurt
me
Fournier: Lets just meet first so I know your for real and not trying to set me up
[Fournier:] U almost here
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* * *
[Fournier:] Hurry up
[Fournier:] Where u at
Goodrow: I’m walking
Fournier: Ok well if u want to do something it needs to happen quick
Goodrow: Kk
Fournier: U want me to blow u
Goodrow: Umm ok. How
[Goodrow:] Where r u
Fournier: I’m behind stallions theirs an alley way in between 704 and stallions
Goodrow: OkAy
[Goodrow:] Blue car ?
Fournier: Yea I’m at the end of the parking lot
Goodrow: Okay
Fournier: How close are u
Goodrow: Almost there
See id. at *1–2 (all alterations and errors in original) (quoting Trial Ct. Op.).
On January 23, 2019, Fournier was sentenced to a minimum of four (4) years to a
maximum of eight (8) years of state incarceration, to be followed by a consecutive period of five
(5) years’ probation. See id. at *2 He also had to register as a sex offender under Pennsylvania’s
Sex Offender Registration and Enforcement Act, 42 Pa. C.S. §§ 9799.10–.41. See id. at *2 &
n.3. Fournier timely filed a post-sentence motion, for which the trial court held a hearing on
March 14, 2019, and ultimately denied on April 12, 2019. See Docket, Commonwealth v.
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Fournier, No. CP-22-CR-0005626-2017 (Dauphin Cnty. Ct. Com. Pl. filed Oct. 18, 2017) (“CCP
Dkt.”); (Doc. Nos. 16-6–16-8).1 Fournier then timely filed a notice of appeal to the
Pennsylvania Superior Court in which he argued that the trial court erred “in refusing to find
entrapment as a matter of law, where the court correctly found that the issue of entrapment had
been properly raised, and there was no dispute as to the operative facts relating to the defense.”
See Fournier, 2020 WL 1181977, at *3 (quoting Br. for Appellant at 5); see also (Doc. No. 16-
15). The Superior Court, through an unpublished decision issued on March 11, 2020, rejected
Fournier’s argument, agreeing with the trial court that the special agent’s conduct “did not rise to
the requisite level of outrageousness that would justify a finding of entrapment as a matter of
law.” See id. at *4 (quoting Trial Ct. Op., 7/8/19, at 7–9); see also (Doc. No. 16-17 at 11). As
such, the Superior Court affirmed Fournier’s criminal judgment. See Fournier, 2020 WL
1181977, at *4; see also (Doc. No. 16-17 at 11).
Following the Superior Court’s decision, Fournier timely filed a petition for allowance of
appeal with the Pennsylvania Supreme Court, which the Court denied on October 15, 2020. See
Commonwealth v. Fournier, 240 A.3d 108 (Pa. 2020) (Table); see also (Doc. Nos. 16-18, 16-19,
16-21). Fournier did not file a petition for a writ of certiorari with the United States Supreme
Court.
Despite having a pending direct appeal, Fournier pursued post-conviction collateral relief
by filing a pro se petition under Pennsylvania’s Post Conviction Relief Act, 42 Pa. C.S. §§ 9541–
1 The Court takes judicial notice of the docket for Fournier’s underlying criminal case, which is
available on the Unified Judicial System of Pennsylvania Web Portal
(https://ujsportal.pacourts.us/CaseSearch). See Orabi v. Att’y Gen. of the U.S., 738 F.3d 535,
537 n.1 (3rd Cir. 2014) (stating that the court “may take judicial notice of the contents of another
[c]ourt’s docket”); Wilson v. McVey, 579 F. Supp. 2d 685, 688 n.5 (M.D. Pa. 2008) (taking
judicial notice of court docket).
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46 (“PCRA”), on July 23, 2020. See CCP Dkt.; (Doc. No. 16-12). On July 28, 2020, the PCRA
court dismissed Fournier’s PCRA petition as premature insofar as his petition for allowance of
appeal was still pending before the Pennsylvania Supreme Court. See CCP Dkt.; (Doc. No. 16-
13).
Fournier then filed another pro se PCRA petition on September 7, 2021, in which he
appeared to argue that (1) law enforcement seized his cell phone and analyzed its contents
without a warrant, (2) law enforcement seized his car, searched it, and “finger printed [sic] it”
without a warrant and without his consent, (3) law enforcement retained possession of his car
“for an undetermined amount of time,” (4) trial counsel was ineffective for failing to file a
suppression motion relating to law enforcement’s unlawful seizure of Fournier’s phone and car,
(5) trial counsel failed to object to the trial testimony from a certain law enforcement officer, and
(6) the trial court illegally enhanced his sentence because his prior record score was
miscalculated. See CCP Dkt.; (Doc. No. 16-22 at 5–9).2 Two days later, the PCRA court
appointed counsel to represent Fournier. See CCP Dkt.; (Doc. No. 16-23).
On December 3, 2021, PCRA counsel filed a motion to withdraw as Fournier’s counsel.
See CCP Dkt.; (Doc. No. 16-24). Four days later, the PCRA court granted the motion, see CCP
2 Because Fournier’s initial PCRA petition was dismissed as premature, his September 7, 2021
petition still constituted his first PCRA petition for purposes of the PCRA. See Commonwealth
v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. Ct. 2002) (explaining that a PCRA petition filed
before the petitioner’s judgment of sentence becomes final is considered a “premature petition”
and “does not constitute a first PCRA petition”); see also Commonwealth v. Neisser, No. 1968
EDA 2019, 2020 WL 603614, at *3 (Pa. Super. Ct. Feb. 7, 2020) (unpublished) (quashing PCRA
petitioner’s appeal from the dismissal of his PCRA petition because he “filed his PCRA petition
prior to the finality of his judgment of sentence” and, thus, his “filing was a legal nullity, and the
PCRA court lacked authority to consider it and should have dismissed it without prejudice
toward [the petitioner’s] right to file a PCRA petition once the time for him to file a direct appeal
had expired”).
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Dkt.; (Doc. No. 16-25); however, the PCRA court vacated this order through a separate order
issued on December 21, 2021. See CCP Dkt.; (Doc. No. 16-26).
On January 13, 2022, the PCRA court issued a memorandum opinion and order granting
PCRA counsel’s motion to withdraw and notifying Fournier that the PCRA court intended to
dismiss his pro se PCRA petition without a hearing because it was meritless. See CCP Dkt.;
(Doc. No. 16-27). Fournier did not file a response to the PCRA court’s notice of intent to
dismiss, and the PCRA court entered an order dismissing Fournier’s PCRA petition without a
hearing on February 7, 2022. See CCP Dkt.; (Doc. No. 16-28).
Fournier, proceeding pro se, filed a timely appeal from the dismissal of his PCRA
petition to the Superior Court on March 2, 2022. See CCP Dkt.; (Doc. No. 16-30). On
November 3, 2022, the Superior Court issued an order quashing Fournier’s appeal due to his
failure to file a brief. See (Doc. Nos. 16-30 at 4; 16-39). Fournier did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
On March 1, 2023, Fournier filed his Section 2254 habeas petition in this case.3 Because
Fournier did not use the Court’s standard form when filing his petition, an Administrative Order
issued that provided him with notice of the limitations on his filing of future Section 2254
3 The federal “prisoner mailbox rule” provides that a pro se prisoner’s petition is deemed filed
“at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.”
See Houston v. Lack, 487 U.S. 266, 276 (1988). Here, Fournier included a declaration with his
petition indicating that he placed his petition in the prison mail system on March 1, 2023. See
(Doc. No. 1 at 8). As such, the court uses March 1, 2023, as the petition’s filing date even
though the Clerk of Court did not docket the petition until March 15, 2023.
Additionally, Fournier neither remitted the filing fee or applied for leave to proceed in forma
pauperis when he filed his habeas petition; as such, an Administrative Order issued requiring him
to either pay the fee or file an application for leave to proceed in forma pauperis. (Doc. No. 3.)
Fournier timely complied with this Administrative Order by filing an application for leave to
proceed in forma pauperis on March 24, 2023 (Doc. No. 4), and his certified prisoner trust fund
account statement on April 3, 2023 (Doc. No. 6).
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petitions and directed him to sign and return a notice of election if, after reviewing the
Administrative Order, he wanted to have the Court rule on his petition as filed. (Doc. No. 9.)
Fournier timely signed and returned a notice of election in which he expressed his desire to have
the Court rule on his petition as filed instead of withdrawing it to file a new, comprehensive
petition. (Doc. No. 10.)
On June 21, 2023, the Court issued an Order which, inter alia, granted Fournier’s
application for leave to proceed in forma pauperis and directed Respondents to file a response to
his habeas petition. (Doc. No. 11.) After receiving an extension of time to file their response
(Doc. Nos. 13, 14), Respondents timely filed their response in opposition to Fournier’s habeas
petition on October 2, 2023. (Doc. No. 16.) Fournier did not file a reply brief in further support
of his petition.
II. 	LEGAL STANDARDS
A. 	Section 2254 Habeas Petitions
A petition for writ of habeas corpus is the exclusive federal remedy for a state prisoner
challenging the “very fact or duration” of their confinement and seeking “immediate release or a
speedier release from that imprisonment.” See Preiser v. Rodriguez, 411 U.S. 475, 498–99
(1973); Leamer v. Fauver, 288 F.3d 532, 542–44 (3d Cir. 2002). A district court is authorized to
“entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court only on the ground that [they are] in custody in violation of the
Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Claimed
violations of state law, standing alone, will not entitle a petitioner to relief, absent a showing that
those violations are so great as to be of a constitutional dimension. See Estelle v. McGuire, 502
U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court
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determinations on state-law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
Furthermore, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas
corpus must have exhausted the remedies available to them in the courts of the state. See 28
U.S.C. § 2254(b)(1)(A).
These same principles that limit habeas relief to errors of a constitutional dimension also
require federal courts to give an appropriate degree of deference to the factual findings and legal
rulings made by the state courts during state criminal proceedings. There are two critical
components to this deference mandated by Section 2254.
First, with respect to legal rulings by state courts, habeas relief is unavailable to a
petitioner for any claim that has been adjudicated on its merits in state court unless it can be
shown that the state court decision was either: (1) “contrary to” or involved an unreasonable
application of clearly established case law; see id. § 2254(d)(1); or (2) was “based upon an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding,” see id. § 2254(d)(2). Applying this deferential standard of review, federal courts
frequently decline invitations by habeas petitioners to substitute their legal judgments for the
considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338–
39 (2006) (concluding that state court’s decision on petitioner’s peremptory challenge based on
Batson v. Kentucky, 476 U.S. 79 (1986), “was not an unreasonable determination of the facts in
light of the evidence presented to the state court”); see also Warren v. Kyler, 422 F.3d 132, 139–
40 (3d Cir. 2006) (determining that state court’s decision to apply presumption in the applicable
version of 42 Pa. C.S. § 9714 was not “an objectively unreasonable application of clearly
established federal law”); Gattis v. Snyder, 278 F.3d 222, 231 (3d Cir. 2002) (“We agree with
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the District Court that the state court decisions are not contrary to clearly established federal
law.”).
In addition, the determination of a factual issue by a state court is presumed to be correct
unless the petitioner can show by clear and convincing evidence that this factual finding was
erroneous. See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”). This presumption in favor of the correctness of state court factual
findings has been extended to a host of factual findings made during criminal proceedings. See,
e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam) (explaining that under the
applicable standard, “we have not the slightest hesitation in saying that the trial court’s
conclusion as to [the defendant’s] competency was fairly supported by the record” (citation and
internal quotation marks omitted)). This principle applies to factual findings made both by the
state trial court and state appellate courts. See Rolan v. Vaughn, 445 F.3d 671, 679 (3d Cir.
2006) (“Generally, federal courts defer to state appellate court determinations of fact.”). Thus,
this Court may not reassess credibility determinations made by the state courts and must give
equal deference to both the explicit and implicit factual findings made by the state courts. See
Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000) (“[W]e must provide the same presumption
of correctness required by § 2254(e)(1) to the state courts’ implicit factual findings as we provide
to express findings of the state courts.” (citing Campbell v. Vaughn, 209 F.3d 280, 285–86 (3d
Cir. 2000))). Applying this standard of review, federal courts may only grant habeas relief
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whenever “[o]ur reading of the PCRA court records convinces us that the Superior Court made
an unreasonable finding of fact.” See Rolan, 445 F.3d at 681.
B. 	Exhaustion of State Remedies and Procedural Default
Absent unusual circumstances, a federal court should not entertain a petition for writ of
habeas corpus, unless the petitioner has first satisfied the statutory exhaustion requirement
providing that habeas relief “shall not be granted unless it appears that . . . the applicant has
exhausted the remedies available in the courts of the State.” See 28 U.S.C. § 2254(b)(1)(A); see
also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This exhaustion requirement is grounded
on principles of comity to ensure that state courts have the initial opportunity to review federal
constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.
2000); Picard v. Connor, 404 U.S. 270, 275–76 (1971).
Section 2254 codifies this principle by requiring that a habeas petitioner exhaust the
remedies available in the courts of the State, see 28 U.S.C. § 2254(b)(1)(A), meaning a state
prisoner must “fairly present” their claims in “one complete round of the state’s established
appellate review process,” before bringing them in federal court. See O’Sullivan, 526 U.S. at
845 (stating that “[b]ecause the exhaustion doctrine is designed to give the state courts a full and
fair opportunity to resolve federal constitutional claims before those claims are presented to the
federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's established review process”).
This requires that the claim brought in federal court be the substantial equivalent of that
presented to the state courts. See Picard, 404 U.S. at 278 (“[T]he substance of a federal habeas
corpus claim must first be presented to the state courts.”); see also McCandless v. Vaughn, 172
F.3d 255, 261 (3d Cir. 1999) (holding that petitioner must present both “factual and legal
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substance” of claim to state courts). Mere reliance of state and federal claims on the same
constitutional provision does not render the two claims substantially equivalent. See Brown v.
Cuyler, 669 F.2d 155 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976). Instead,
both the legal theory and the facts on which a federal claim rests must have been presented to the
state courts. See Picard, 404 U.S. at 277; Brown, 669 F.2d at 158–61.
“When a claim is not exhausted because it has not been ‘fairly presented’ to the state
courts, but state procedural rules bar the applicant from seeking further relief in state courts, the
exhaustion requirement is satisfied because there is ‘an absence of available State corrective
process.’” McCandless, 172 F.3d at 260 (quoting 28 U.S.C. § 2254(b)). Nevertheless, Section
2254 habeas petitioners “are considered to have procedurally defaulted their claims and federal
courts may not consider the merits of such claims unless the applicant establishes ‘cause and
prejudice’ or a ‘fundamental miscarriage of justice’ to excuse [their] default.” See id. (quoting
Coleman v. Thompson, 501 U.S. 722, 750 (1991). To demonstrate “cause” for a procedural
default, a petitioner must point to some objective external factor which impeded their efforts to
comply with the state’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986).
“Prejudice” will be satisfied only if the petitioner can demonstrate that the outcome of the state
proceeding was “unreliable or fundamentally unfair” as a result of a violation of federal law. See
Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).
Alternatively, if a petitioner demonstrates that a “constitutional violation has probably
resulted in the conviction of one who is actually innocent,” see Murray, 477 U.S. at 496, then a
federal court can excuse the procedural default and review the claim to prevent a fundamental
miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank,
266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception applies only in
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extraordinary cases, and actual innocence means factual innocence, not legal insufficiency. See
Bousley v. United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner
establishes actual innocence by asserting “new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial,” showing that no reasonable juror would have voted to find the petitioner
guilty beyond a reasonable doubt. See Hubbard v. Pinchak, 378 F.3d 333, 339–40 (3d Cir.
2004).
In general, attorney errors in collateral proceedings do not establish cause to excuse a
procedural default unless the petitioner can meet the narrow exception to this general rule set
forth in Martinez v. Ryan, 566 U.S. 1 (2010). Under Martinez, “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial,” see id. at 9, if the petitioner can satisfy two
factors: that the underlying, otherwise defaulted, claim of ineffective assistance of trial counsel is
“substantial,” meaning that it has “some merit,” see id. at 14; and that the petitioner had “no
counsel” or “ineffective” counsel during the initial phase of the state collateral review
proceeding. See id. at 17; see also Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014).
A petitioner demonstrates that the underlying ineffective assistance of trial counsel claim
has “some” merit by “show[ing] that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” See Workman v.
Superintendent Albion SCI, 915 F.3d 928, 937–38 (3d Cir. 2019); see also Martinez, 566 U.S. at
13–14. A petitioner demonstrates that post-conviction counsel’s ineffectiveness caused the
procedural default by showing that post-conviction counsel’s performance was deficient under
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the first prong of the standard established in Strickland v. Washington, 466 U.S. 668, 685 (1984).
See Preston v. Superintendent Graterford SCI, 902 F.3d 365, 376 (3d Cir. 2018); see also
Workman, 915 F.3d at 937–38.4
III. 	DISCUSSION
A. 	Fournier’s Claims in his Section 2254 Habeas Petition
Fournier appears to raise the following claims for relief in his habeas petition. First,
Fournier asserts that law enforcement engaged in “illegal procedural strategic tactics” when
arresting him because he “was actively visiting a legally sanctioned Adult website that [he] has
consistently visited for personal sexual entertainment/personal relationships with consenting
‘male’ counter-parts [sic] of legal age.” See (Doc. No. 1 at 6). He argues that law enforcement
“purely and significantly created and manufactured” the “corrupt circumstances” leading to his
arrest because they “intercepted/interjected themselves . . . into a legally sanctions website to
4 Under the first prong of the Strickland standard, a petitioner must show that “counsel’s
performance was deficient.” See 466 U.S. at 687. This requires a showing that “counsel’s
representation fell below an objective standard of reasonableness.” See id. at 687–88; Williams
v. Taylor, 529 U.S. 362, 390–91 (2000). “Counsel’s performance is deficient only ‘when
counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed . . .
by the Sixth Amendment.’” McKernan v. Superintendent Smithfield SCI, 849 F.3d 557, 564 (3d
Cir. 2017) (quoting McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 (3d Cir.
2012)). This requires the “reasonably effective assistance” of counsel:
[Courts] consult no checklist, as no catalog can “satisfactorily take [into] account .
. . the range of legitimate decisions regarding how best to represent a criminal
defendant.” 	Id. at 688–89[.] 	That is why [the courts’] review of counsel’s
performance is “highly deferential,” United States v. McCoy, 410 F.3d 124, 135
(3d Cir. 2005), for “it is all too easy for a court” to find a certain act or omission
unreasonable after the defense ultimately proves unsuccessful, Strickland, 466 U.S.
at 689[;] see also Rolan v. Vaughn, 445 F.3d 671, 681–82 (3d Cir. 2006)
(“[C]ounsel’s 	strategic 	choices 	will 	not 	be 	second-guessed 	by 	post-hoc
determinations that a different trial strategy would have fared better.”).
See Rogers v. Superintendent Greene SCI, 80 F.4th 458, 462 (3d Cir. 2023).
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corrupt its purpose.” See (id.). They also would not explain how it was “possible or a 14-[year-
old] imaginary child to access an adult website.” See (id.).
Second, Fournier asserts that he was “inebriated and physically exhausted” at the time of
his actions and arrest, and thus “was mostly unaware/conscious/cognizant . . that the police had
‘illegally and unscrupulously entangled [him] in a personal ‘vendetta’ to persecute, arrest, [and]
prosecute . . . their territory of “homos!” See (id.). In support of this claim, Fournier alleges that
the arresting officer and his partner referred to him as a “homo” or “faggot” rather than his actual
name, and stated that they “got another ‘faggot,’ etc.” See (id.). He also contends that police
only “round[ed] up ‘homosexual males’ and not women, bi-sexuals, etc.,” showing that they
were specifically targeting homosexuals like himself. See (id. at 7).
Third, Fournier complains that despite his criminal record showing that he had three
previous convictions for driving under the influence, law enforcement never gave him a field
sobriety test. See (id. at 6). Fourth, Fournier complains that law enforcement arrested him
without reading him his Miranda rights or informing him of the reasons for his arrest. See (id.)
Fifth, Fournier asserts that his car was unlawfully seized and searched without his consent, and
law enforcement refused to “properly impound” his car and its contents for possible prosecution.
See (id.).
Sixth, and finally, Fournier claims that he “routinely brought” the “significant issues
raised” in this habeas petition to his trial counsel, only to have his counsel “suspiciously reject[]”
them. See (id. at 7). He notes that he has “multiple chronic mental health issues [and] trauma . .
. that allowed [his] counsel[, the assistant district attorney, and the trial court to] impede [his]
rights to a fair [and] impartial trial.” See (id.).
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For relief, Fournier seeks the “redaction” of all charges, his immediate release from
incarceration, and his permanent removal from any sex registry listings. See (id.). He also seeks
$88,000 in compensatory damages and an injunction preventing law enforcement from
conducting any “future tactile . . . entrapments.” See (id.).
B. 	Respondents’ Arguments in Opposition to the Petition
Respondents oppose Fournier’s requests for habeas relief on two grounds. See (Doc. No.
16 at 6–20). First, they assert that even though Fournier timely filed his petition, see (id. at 7–9),
his claims are procedurally defaulted because he did not raise them on direct appeal and the
Superior Court quashed his PCRA appeal due to his failure to file a supporting brief. See (id. at
10–19). Second, they contend that Fournier’s “bad grounds for relief, coupled with his failure to
reference the state court record in his purported factual support for his grounds for relief, also
establish that his habeas petition lacks merit and should be denied.” See (id. at 19–20).
C. 	Analysis
1. 	Fournier’s Request for Money Damages
Fournier seeks $88,000 in compensatory damages in his petition. See (Doc. No. 1 at 7).
The Court will deny this request for relief because money damages are unavailable in federal
habeas actions. See Preiser, 411 U.S. at 494 (explaining that “if a . . . prisoner is seeking
damages, [they are] attacking something other than immediate or more speedy release—the
traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an
appropriate or available federal remedy”); Gladden v. Doll, No. 21-cv-00802, 2021 WL
2567015, at *4 (M.D. Pa. June 23, 2021) (“Money damages are not available in a habeas action.”
(citing Ruff v. Warden FCI Schuylkill, No. 20-cv-00851, 2020 WL 2839092, at *1 n.2 (M.D. Pa.
June 1, 2020))).
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2. 	Whether Fournier’s Petition is Moot
The Court’s review of the Commonwealth of Pennsylvania Department of Corrections
(“DOC”) Inmate Locator (https://inmatelocator.cor.pa.gov/#/) shows that Fournier was released
on parole on November 1, 2023.5 However, Fournier sent the Court a letter in April 2024,
stating that he was recommitted to a DOC correctional institution on a technical parole violation.
See (Doc. No. 18). It is unclear how long Fournier remained incarcerated after he was
recommitted, but the DOC’s Inmate Locator indicates that he is not incarcerated and is currently
on parole. Therefore, the Court must address whether Fournier’s habeas petition is moot due to
his release from incarceration.
“Article III of the [United States] Constitution limits federal ‘judicial Power’ to the
adjudication of ‘Cases’ or ‘Controversies.’” Abreu v. Superintendent Smithfield SCI, 971 F.3d
403, 406 (3d Cir. 2020) (quoting Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137 (3d
Cir. 2009)). “For a case or controversy to exist, a petitioner, throughout each stage of the
litigation, ‘must have suffered, or be threatened with, an actual injury traceable to the
[respondent] and likely to be redressed by a favorable judicial decision.’” Id. (quoting DeFoy v.
McCullough, 393 F.3d 439, 442 (3d Cir. 2005)). Consequently, “a habeas corpus petition
generally becomes moot when a prisoner is released from custody because the petitioner has
received the relief sought.” See id. (citing DeFoy, 393 F.3d at 441); see also Hamilton v.
Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (explaining that mootness is “a doctrine that ‘ensures
that the litigant’s interest in the outcome continues to exist throughout the life of the lawsuit,’
5 Fournier has not updated the Court as to his address as required by the Local Rules. See M.D.
Pa. L.R. 83.18 (“Whenever a party by whom or on whose behalf an initial paper is offered for
filing is not represented in the action, such party shall maintain on file with the clerk a current
address at which all notices and copies of pleadings, motions or papers in the action may be
served upon such party.”).
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and which is ‘concerned with the court’s ability to grant effective relief’” (quoting Freedom from
Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d 469, 476 (3d Cir. 2016) and
County of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001))).
Nevertheless, a petitioner who has been released from custody “may obtain judicial
review of a [habeas] petition by showing that [they] continue[] to suffer from secondary or
collateral consequences of [their] conviction.” See Abreu, 971 F.3d at 406 (citations omitted).
Generally speaking, “collateral consequences will be presumed when the [petitioner] is attacking
[their] conviction while still serving the sentence imposed for that conviction [and] . . . where
the[y are] attacking that portion of [their] sentence that is still being served.” See id. (citing
United States v. Jackson, 523 F.3d 234, 242 (3d Cir. 2008)). Once a petitioner has been released,
however, the Court does “not presume that a conviction carries collateral consequences.” See
Abreu, 971 F.3d at 406 (citing Burkey v. Marberry, 556 F.3d 142, 148 (3d Cir. 2009)). Instead,
the Court “must ‘address[] the issue of collateral consequences in terms of the “likelihood” that a
favorable decision would redress the injury or wrong.’” See id. (quoting Burkey, 556 F.3d at
148). For that reason, “[i]t is not enough if ‘collateral consequences proffered by the petitioner’
amount to ‘a possibility rather than a certainty or even a probability.’” See id. (quoting Burkey,
556 F.3d at 148).
Here, Fournier’s release on parole does not moot his Section 2254 petition because:
“[I]n the criminal context, an individual who is on parole or released on his or her
own recognizance is deemed in custody because of the significant restrictions
imposed on his or her freedom.” Kumarasamy v. Att’y Gen. of U.S., 453 F.3d 169,
172 (3d Cir. 2006). A petitioner’s release on parole may render his habeas claims
moot where release on parole is the only relief sought. 	See, e.g., Razzoli v. FCI
Allenwood, 200 F. App’x 166, 169 (3d Cir. 2006).
See Wilson v. Delbalso, No. 19-cv-05205, 2021 WL 3777124, at *2 n.4 (E.D. Pa. June 29,
2021), report and recommendation adopted, 2021 WL 3771871 (E.D. Pa. Aug. 24, 2021); see
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also Harris v. Lagana, No. 13-cv-05063, 2015 WL 4413085, at *2 (D.N.J. July 16, 2015)
(explaining that the “custody” requirement for habeas corpus relief “is defined not only as
physical confinement, but includes such limitations on a person’s liberty as those imposed during
parole”). Here, Fournier’s requests for relief include more than simply his immediate release
from incarceration. Accordingly, his habeas petition is not moot.
3. 	Procedural Default
After reviewing the record, Fournier’s petition, and Respondents’ response to the
petition, the Court concludes that all of Fournier’s claims are procedurally defaulted. Fournier
fully exhausted only one claim through the Pennsylvania state courts, namely, his claim on direct
appeal that the trial court erred in refusing to find entrapment as a matter of law. He technically
preserved this claim by raising it on appeal to the Superior Court, see Fournier, 2020 WL
1181977, at *3 (identifying Fournier’s question for review on appeal as: “Did not the trial court
err in refusing to find entrapment as a matter of law, where the court correctly found that the
issue of entrapment had been properly raised, and there was no dispute as to the operative facts
relating to the defense?”), and then by filing a petition for allowance of appeal with the
Pennsylvania Supreme Court. However, he did not include this claim in his habeas petition, see
(Doc. No. 1 at 6–7); therefore, the fact that he fully exhausted this claim is irrelevant to the
Court’s resolution of his habeas petition.
Regarding any other claim Fournier identifies in his habeas petition, even if the Court
presumed that they were all raised in his PCRA petition, he never exhausted the claims. The
Superior Court quashed Fournier’s appeal from the dismissal of his PCRA petition because he
failed to file an appellate brief, despite the Superior Court having granted him multiple
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extensions of time to do so. See (Doc. Nos. 16-31–16-36, 16-39).6 Since Fournier failed to
properly present his PCRA claims to the Superior Court, those claims are unexhausted. See
Lambert v. Blackwell, 387 F.3d 210, 233–34 (3d Cir. 2004). Moreover, Fournier can never
exhaust these claims because the PCRA’s statute of limitations for raising them has expired. See
42 Pa. C.S. § 9545(b)(1) (setting forth limitations period for PCRA petitions).7 Accordingly,
Fournier’s claims are procedurally defaulted. See Keller v. Larkins, 251 F.3d 408, 415 (3d Cir.
2001).
Fournier could have attempted to demonstrate that the Court should excuse the
procedural default of his claims, if he addressed the issue in his habeas petition or in a reply
brief. Fournier did not address this issue at all in his petition, see (Doc. No. 1 at 1–8), and he did
not file a reply brief. Therefore, he fails to show that cause and prejudice exist to excuse the
6 The Court appreciates Respondents’ submission of a thorough state-court record in this case,
which greatly facilitated the Court’s review.
7 Under the PCRA, Fournier has one year from the date his judgment of sentence becomes final
to file a PCRA petition, unless “the petition alleges and the petitioner proves that” it falls within
one of the limited exceptions to the one-year filing requirement. See id. Here, Fournier’s
judgment of sentence became final on January 13, 2021, ninety days after the Pennsylvania
Supreme Court denied his petition for allowance of appeal and he did not seek further review by
the United States Supreme Court. See U.S. Sup. Ct. R. 13 (requiring a petition for a writ of
certiorari to be filed “within 90 days after the entry of the order denying discretionary review”);
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (“For petitioners who pursue direct review all the
way to this Court, the judgment becomes final at the ‘conclusion of direct review’—when this
Court affirms a conviction on the merits or denies a petition for certiorari. For all other
petitioners, the judgment becomes final at the ‘expiration of the time for seeking such review’—
when the time for pursuing direct review in this Court, or in state court, expires.”). Thus,
Fournier had until January 13, 2022, to file his PCRA petition. Fournier does not attempt to
explain how he would meet one of the three exceptions to the PCRA time bar, see 42 Pa. C.S. §
9545(b)(1)(i)–(iii), if he filed a petition now, and it appears that any claims he would raise would
be waived under the PCRA. See 42 Pa. C.S. § 9544(b) (“(b) Issues waived.--For purposes of this
subchapter, an issue is waived if the petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior state postconviction proceeding.”).
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default, and he has not provided any new, reliable evidence of his actual innocence. This failure
precludes this Court from reviewing his habeas claims on their merits. See Coleman, 501 U.S. at
750 (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.”).8
D. 	Certificate of Appealability
“Unless a circuit justice or judge issues a certificate of appealability [(“COA”)], an
appeal may not be taken to the court of appeals from . . . the final order in a habeas proceeding in
which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. §
2253(c)(1)(A). A COA may issue only if the applicant has made a substantial showing of the
denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). When deciding whether to issue a
COA after a dismissal on procedural grounds, the Court applies the following standard:
[w]hen the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling . . . . Where a plain procedural bar is present and the district court
is correct to invoke it to dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the petitioner
8 Even if Fournier’s habeas petition could somehow be interpreted as including a claim that the
trial court erred in not finding that he established the affirmative defense of entrapment as a
matter of law under 18 Pa. C.S. § 313, such a claim raises only an issue of state law which is not
reviewable under Section 2254. See 28 U.S.C. § 2254(a) (providing that federal habeas relief is
available to a person “in custody in violation of the Constitution or laws or treaties of the United
States”); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (stating that “federal habeas corpus relief
does not lie for errors of state law”).
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should be allowed to proceed further. In such a circumstance, no appeal would be
warranted.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, jurists of reason would not find the disposition of this case debatable, i.e.,
that Fournier’s Section 2254 claims are procedurally defaulted. Accordingly, the Court will not
issue a COA in this case.
IV. 	CONCLUSION
For the reasons discussed above, the Court will deny Fournier’s Section 2254 habeas
petition, decline to issue a COA, and direct the Clerk of Court to close this case. An appropriate
Order follows.
s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania
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