Frankie Dean Thomas v. Warden Jonathan C. Miner; Commonwealth of Pennsylvania

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2045
___________
FRANKIE DEAN THOMAS,
Appellant
v.
WARDEN JONATHAN C. MINER;
COMMONWEALTH OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 07-cv-00511
(Honorable Sylvia H. Rambo)
___________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 28, 2007
Before: SCIRICA, Chief Judge, HARDIMAN and ALDISERT, Circuit Judges.
(Filed: January 4, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM.
Frankie Thomas, a prisoner currently in federal custody serving a 322-month
federal sentence for armed bank robbery and use of a firearm in a violent crime, appeals
from the District Court’s order dismissing his habeas corpus petition. We will affirm.

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In March 1993, Thomas pled nolo contendere to a charge of possession with intent
to deliver cocaine in the Court of Common Pleas, Franklin County, Pennsylvania. He
was subsequently sentenced on April 28, 1993, to a term of 33 to 72 months
imprisonment. The Commonwealth of Pennsylvania’s Board of Probation and Parole
granted him parole in 1996. Within a year of his release, Thomas was arrested on the
federal armed bank robbery charge. While it is unclear from the record presented on
appeal, Thomas appears to allege that his parole was either revoked or that a detainer was
lodged against him by the Commonwealth of Pennsylvania following his 1996 federal
conviction. In any event, beginning in 1999, Thomas began a series of post-conviction
attacks challenging his 1993 state court conviction.
Thomas’ first Post Conviction Relief Act (“PCRA”) petition was filed in October
1999, but dismissed as untimely in April of the following year. The Pennsylvania
Superior Court dismissed his appeal from that decision for failure to file a brief on
February 5, 2001. See Commonwealth v. Thomas, 1199 MDA 2000. A second PCRA
petition was likewise dismissed as untimely on December 29, 2003, and the Superior
Court quashed Thomas’ appeal on November 3, 2004. See Commonwealth v. Thomas,
247 MDA 2004. Undeterred, Thomas filed yet a third PCRA petition in March 2005.
Once again, the PCRA court dismissed the petition as untimely and as lacking merit on
May 17, 2005. As with the dismissal of his other petitions, Thomas sought review of that
determination. In a Memorandum Opinion filed on June 6, 2006, the Pennsylvania

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Superior Court affirmed the PCRA court’s order dismissing his petition. The Superior
Court determined that Thomas was ineligible for post-conviction relief insofar as he
failed to note in his pleadings whether he was currently serving a sentence for the
underlying crime or, alternatively, whether he was currently serving an unrelated sentence
which must expire before he may commence serving the underlying sentence. See
Commonwealth v. Thomas, 912 MDA 2005 at 5. The Superior Court further concluded
that the certified record failed to include any evidence that Thomas’ parole for the
narcotics offense was revoked or, importantly, whether he was re-sentenced and waiting
to serve the sentence upon completion of his federal sentence. According to Thomas, the
Superior Court also denied his petition for reconsideration on August 10, 2006.
Thomas thereafter sought recourse in federal court by filing of a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Thomas specifically requested that the
District Court: 1) vacate the Pennsylvania Superior Court’s June 6, 2006 decision; 2)
reinstate his appeal from the PCRA court’s dismissal of his third post-conviction petition
on May 17, 2005; and 3) remand his PCRA appeal to the Pennsylvania Superior Court to
address the merits of his appeal. See § 2254 Petition at 7. Apparently, given the limited
nature of Thomas’ requested relief, the District Court entered a Memorandum and Order
on March 26, 2007 summarily dismissing his § 2254 petition and declining to issue a

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The Rooker-Feldman doctrine embodies the principles set forth by the Supreme1
Court in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983): “lower federal courts lack subject
matter jurisdiction to engage in appellate review of state court determinations or to
evaluate constitutional claims that are ‘inextricably intertwined with the state court’s
[decision] in a judicial proceeding.’” Marks v. Stinson, 19 F.3d 873, 885 n.11 (3d Cir.
1994)(quoting Port Auth. PBA v. Port Auth. of New York & New Jersey, 973 F.2d 169,
177 (3d Cir. 1992)).
In deciding whether to grant a certificate of appealability, we have considered the2
arguments raised the parties’ briefs.
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certificate of appealability on the basis of the Rooker-Feldman doctrine. This timely1
appeal followed.
Initially, we note that there appears to be some confusion as to whether Thomas’
petition was filed pursuant to 28 U.S.C. § 2241 or § 2254. Given his status as a federal
prisoner, the petition was considered as a cause of action filed pursuant to § 2241 and
docketed as such by the District Court’s Clerk’s Office. Thomas, however, titled his
petition as one filed pursuant to 28 U.S.C. § 2254, and attached a form § 2254 petition to
his hand-written submission. The District Court actually treated the petition as one filed
pursuant to § 2254, most likely as a result of Thomas’ pointed attack on a conviction and
sentence imposed by the Pennsylvania courts rather than as a challenge to the execution
of his federal sentence. Accordingly, we will construe Thomas’ notice of appeal as a
request for a certificate of appealability under 28 U.S.C. § 2253(c) to the extent one is
required. See Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001); Fed. R. App. P.2

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22(b)(2). For the reason that follows, we will affirm the District Court’s judgment and
deny the request, and we do so with little discussion.
While the District Court is certainly correct to note that the Rooker-Feldman
doctrine generally bars a federal court from exercising subject matter jurisdiction over a
challenge to a state court judgment, a District Court may entertain a petition for writ of
habeas corpus on behalf of a prisoner challenging either the validity or execution of his
state sentence where the petitioner alleges that he “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); 2254(a).
Unfortunately for Thomas, even read liberally in the habeas context, the underlying
petition was nonetheless subject to summary dismissal in light of the nature of appellant’s
allegations of error with respect to the Pennsylvania Superior Court’s June 6, 2006
decision disposing of his third post-conviction appeal. Thomas’ challenge to the Superior
Court’s understanding and application of the eligibility requirements for state post-
conviction relief under Pa.C.S.A § 9543 is one which should have been presented to the
Pennsylvania Supreme Court, and is inappropriately advanced as a substantive claim in a
habeas petition. See Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (stating
that “the federal role in reviewing an application for habeas corpus is limited to
evaluating what occurred in the state or federal proceedings that actually led to the
petitioner’s conviction; what occurred in the petitioner’s collateral proceeding does not
enter into the habeas calculation”).

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Additionally, insofar as Thomas may have sought to advance substantive claims3
attacking his 1993 state court conviction and sentence, we decline to issue a certificate of
appealability because any such claims appear to be barred by the limitations period set
forth in 28 U.S.C. § 2244(d), and there are no grounds asserted for applying the statutory
tolling provision. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
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Accordingly, the District Court’s order of dismissal will be affirmed. See Hi Tech
Trans, LLC v. New Jersey, 382 F.3d 295, 297 (3d Cir. 2004), citing Nicini v. Morra, 212
F.3d 798, 805 (3d Cir. 2000) (court of appeals may affirm for any reason supported by the
record). To the extent that a certificate of appealability is required, one will not issue as
Thomas has not made a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2). Appellant’s “Demand for Declatory [sic] Relief Pursuant to Title3
28 U.S.C. § 2201(a) & 2202” is likewise denied.

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