NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-3752


                                   RODNEY WELLS,
                                                        Appellant

                                            v.

                 BEN VARNER; THE DISTRICT ATTORNEY
                OF THE COUNTY OF PHILADELPHIA; THE
           ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA




                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 03-CV-00727)
                       District Judge: Honorable Jan E. DuBois


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 16, 2010
                  Before: FUENTES and VANASKIE, Circuit Judges,
                          and DITTER,* Senior District Judge.

                                 (Filed: August 31, 2010)


                               OPINION OF THE COURT




   *
   Honorable J. William Ditter, Jr., Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
VANASKIE, Circuit Judge.

         Underlying this protracted habeas corpus proceeding is the fundamental question

of whether there is jurisdiction to consider a collateral attack on a conviction for which

the petitioner received a suspended sentence. Because the resolution of this question is

controlled by Dessus v. Commonwealth of Pennsylvania, 

(3d Cir. 1971), in

which we held that a habeas petitioner is not “in custody” when the sentence for the

conviction at issue was suspended, we will affirm the District Court’s dismissal of the

habeas corpus petition.

I.       BACKGROUND

         As the parties are familiar with the facts of this case we limit this discussion to

those facts essential to our decision. In March 1986, following a jury trial in the

Philadelphia Court of Common Pleas, Appellant Rodney Wells was convicted of third-

degree murder, aggravated assault, simple assault, criminal conspiracy, possession of an

instrument of a crime, and violation of Pennsylvania’s Corrupt Organizations Act

(“PCOA”), 18 Pa. Cons. Stat. Ann. § 911.1 Wells was sentenced to a mandatory term of


     1
     The aggravated assault and murder charges arose out of the shooting death of Noble
Green and the serious wounding of William “Bud” Johnson, members of the 20 th and
Carpenter Street gang. Green and Johnson were shot on July 16, 1983, at 23 rd and Pierce
Street in Philadelphia in the late evening. The Commonwealth’s theory was that Wells,
Craig Murphy, and Ford Howard were the leading members of a group called “The
Family,” which engaged in extensive drug trafficking in Philadelphia. The
Commonwealth presented evidence that “The Family” wanted to expand its base of drug
selling operations into South Philadelphia, but was met with resistance from the 20 th and
                                                                             (continued...)

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life imprisonment on the murder charge 2 and consecutive terms of 5 to 10 years for

aggravated assault and conspiracy. On the PCOA conviction, however, the sentence was

suspended. Wells appealed, and the convictions were affirmed by the Pennsylvania

Superior Court. Commonwealth v. Wells, 

(Pa. Super. Ct. 1990). The

Pennsylvania Supreme Court denied allowance of appeal on October 30, 1990.

Commonwealth v. Wells, 

(Pa. 1990).

       On December 3, 1996, Wells filed a pro se petition under the Pennsylvania Post-

Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Counsel was

appointed. Wells asserted that the prosecutor had knowingly presented false testimony to

the grand jury, resulting in the grand jury presentment and conviction. (SA 220.) Wells

also asserted that he believed that the sealed grand jury presentment had not included a

PCOA charge, and the prosecutor wrongfully pursued such a charge, thereby enabling the

introduction of otherwise inadmissible evidence at trial.

       The trial court dismissed the PCRA petition. As to the claim of prosecutorial

misconduct in pursuing a PCOA charge, the trial court wrote:

       The presentment did include evidence that [Wells] was engaged in serial
       conduct involving a corrupt organization. The prosecutor acted properly in
       arresting him on that charge. He was convicted of that charge, but no
       additional sentence was imposed.

   1
   (...continued)
Carpenter Street gang, which controlled drug trafficking in that area.
   2
   Appellant’s life sentence on the third-degree murder conviction was mandatory
because he had a prior murder conviction. See 42 Pa. Cons. Stat. Ann. § 9715.

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(SA 284.)

       Wells appealed to the Superior Court, asserting that appellate counsel was

ineffective for not challenging admissibility of evidence pertaining to unrelated

“killings,” his conviction on the PCOA charge violated due process because the

prosecution did not prove every element of the crime beyond a reasonable doubt, and the

PCRA trial court improperly denied access to grand jury transcripts. Finding that the first

two claims had not been presented to the PCRA court, the Superior Court concluded that

they were waived. (SA 313.) The state appellate court further held that Wells’s request

for grand jury transcripts was properly denied. Commonwealth v. Wells, 

(Pa. Super. Ct. 2002). The Supreme Court denied allocatur on November 27, 2002.

Commonwealth v. Wells, 

(Pa. 2002).

       In January 2003, Wells, proceeding pro se, filed a habeas petition in the Eastern

District of Pennsylvania, presenting three claims: (1) ineffective assistance of appellate

counsel for failing to object to references of unrelated “killings;” (2) violation of due

process based on the prosecution’s alleged failure to prove each element of the PCOA

offense; and (3) improper denial of his request to review the grand jury evidence.3 The

petition was referred to Magistrate Judge James R. Melinson, who recommended denial

of the petition because the third claim implicated only a state law issue, and Appellant


   3
     Appellant also filed an earlier petition for habeas corpus in the Eastern District of
Pennsylvania, which the court dismissed on September 13, 1996, for failure to exhaust
state remedies.

                                              4
had failed to properly pursue his first two claims in state court proceedings, was now

foreclosed from doing so, and had not satisfied the cause and prejudice or miscarriage of

justice exceptions to the general rule that a federal court will not consider issues that a

state court finds are procedurally defaulted. The District Court, adopting the

recommendation, dismissed the petition and refused to issue a certificate of appealability.

       Wells appealed the dismissal of his petition to this Court. Pursuant to 28 U.S.C.

§ 2253(c), Wells applied for a certificate of appealability on all three claims presented in

his habeas petition. On March 15, 2004, we granted a certificate of appealability on the

limited issue of:

       [W]hether Petitioner has demonstrated his actual innocence of the
       Pennsylvania Corrupt Organizations Act offense so as to overcome the
       procedural default of the ineffectiveness of appellate counsel and due
       process/corrupt organizations offense claims. Commonwealth v. Besch, 

, 659 (Pa. 1996); Commonwealth v. Shaffer, 

, 841
       (Pa. 1999).

The order granting the limited certificate of appealability held the appeal in abeyance

pending a decision in Kendrick v. District Attorney of County of Philadelphia, C.A. No.

02-3158.4


   4
     In Kendrick, we certified to the Supreme Court of Pennsylvania the question of
whether its holding in Commonwealth v. Besch, 

(Pa. 1996), could be
applied retroactively to cases on collateral review. Besch held that the PCOA did not
encompass the prosecution of a wholly illegitimate enterprise, and that infiltration of a
legitimate business by organized crime was a necessary element of the crime. In
Kendrick, the Pennsylvania Supreme Court answered the certified question in the
affirmative. Kendrick v. Dist. Attorney of Philadelphia County, 

(Pa. 2007).
                                                                               (continued...)

                                               5
       On May 14, 2009, we issued a non-precedential per curiam opinion, remanding

this action to the District Court for further proceedings. Wells v. Varner, 328 F. App’x

128 (3d Cir. 2009). Specifically, we determined that, in light of Kendrick and Besch, the

record supported Wells’s claim that he is actually innocent of the PCOA count, and

remanded the case to the District Court to “allow Wells the opportunity to prove his

actual innocence and to give the Commonwealth the ‘opportunity to produce any

additional evidence to refute such a claim.’” 

(quoting United States v. Garth,

, 114 (3d Cir. 1999)) (footnote omitted). We also noted that “[i]t appears that

Wells’[s] ineffective assistance of appellate counsel claim is unrelated to the PCOA

conviction, and that procedural default of that claim would therefore not be excused, even

if Wells establishes actual innocence of the PCOA count.” 

n.7. We did not

resolve this question, however, leaving it to the District Court to make this determination

in the first instance.

       A petition for panel rehearing was filed by Appellees, arguing that the decision

improperly relied on a different theory than that presented by Wells, conflicted with

federal law, and grossly misapplied the PCOA. The panel granted rehearing on August 3,

2009, vacating the May 14, 2009 opinion and judgment. The Panel directed a member of

this Court’s bar be appointed as amicus curiae on behalf of Wells, but limited counsel’s


   4
    (...continued)
Wells argues that the Commonwealth failed to prove that he had infiltrated or corrupted
an otherwise legitimate business.

                                             6
representation to the following issues:

         (1)    whether Wells is ‘actually innocent’ of his offense under
                Pennsylvania’s Corrupt Organizations Act, 18 Pa. C.S. § 911,
                because he claims his conduct involved only wholly illegitimate
                businesses. . . . and
         (2)    what effect, if any, would the panel’s decision have on Wells’s
                sentence.

II.      DISCUSSION

         The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and we have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. When a district court dismisses a

§ 2254 petition “based on a review of the state court record without holding an

evidentiary hearing,” we apply a plenary standard of review. Fahy v. Horn, 

,

179 (3d Cir. 2008). We also use the plenary standard in reviewing the District Court’s

determinations regarding exhaustion and procedural default. 

affirm the

judgment of the District Court on grounds other than those relied upon by the District

Court. Szuchon v. Lehman, 

, 307 (3d Cir. 2001). And, of course, a

jurisdictional question in a habeas corpus proceeding may be raised by us sua sponte. See

Benchoff v. Colleran, 

, 815 (3d Cir. 2005); see also Bender v. Williamsport

Area School Dist., 

, 541 (1986) (“[E]very federal appellate court has a

special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the

lower courts in a cause under review,’ even though the parties are prepared to concede

it.”).

         In granting rehearing, we directed the parties to discuss two separate and distinct

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issues: first, whether Wells is “actually innocent” of the PCOA charge; and second, what

effect, if any, our decision would have on Wells’s sentence. The second issue arises from

the fact that Wells received a suspended sentence on the PCOA conviction, the only

conviction implicated by the issue on which we granted a certificate of appealability.

Addressing the issues we identified, amicus contends that the matter should be remanded

for the District Court to determine whether Wells is actually innocent of the PCOA

charge, but acknowledges that the consequences of a decision in Wells’s favor are

uncertain. There is no need to speculate as to the effect of a decision in Wells’s favor on

remand, as it is clear that Appellant is not “in custody” pursuant to the challenged PCOA

conviction, a fact that precludes further consideration of Wells’s innocence vel non on the

PCOA charge.

       Congress has limited the availability of federal court review of state court

convictions to those who are “in custody” pursuant to a state court judgment. See 28

U.S.C. § 2254(a). “The federal habeas corpus statute requires that the applicant must be

‘in custody’ when the application for habeas corpus is filed. This is required not only by

the repeated references in the statute, but also by the history of the great writ.” Carafas v.

LaVallee, 

, 238 (1968) (footnotes omitted). As Justice Brennan observed in

Fay v. Noia, 

(1963), “[t]he jurisdictional prerequisite is not the judgment of

a state court but detention simpliciter.” 

(emphasis added).

       In Dessus v. Commonwealth of Pennsylvania, 

(3d Cir. 1971), we



                                              8
addressed the question of whether a person may mount a federal habeas corpus challenge

to a conviction for which he received a suspended sentence under circumstances

remarkably similar to those presented here. In Dessus, the Appellant was convicted in

state court on nine separate indictments emanating from the brutal beating and rape of

three women. One of the women, Mrs. Alexandroff, sustained mortal injuries, dying

nineteen days after the attack. The state court imposed custodial sentences on four of the

indictments, including a life sentence for the murder. “Sentence was suspended on the

remaining five indictments upon which appellant was convicted, including that for the

rape of Mrs. Alexandroff.” 

Dessus collaterally attacked all his convictions

with the exception of the murder conviction. He advanced three theories in support of

relief, including a claim that the testimony of a priest concerning Mrs. Alexandroff’s

identification of Dessus was improperly admitted in violation of his Sixth Amendment

confrontation right. His challenge to the priest’s testimony implicated only the rape

conviction, for which he received a suspended sentence.

       Recognizing that the state court could not vacate the suspended sentence and

impose a term of imprisonment on the rape conviction, 

n.4, we found that the

appellant failed to satisfy the “custody” prerequisite to federal habeas corpus review.

Because “custody is the passport to federal habeas corpus jurisdiction,” 

, and

Dessus’s suspended sentence meant that he was neither in custody as a consequence of

the rape conviction, nor was there the possibility of custody resulting therefrom, we



                                             9
determined that we could not address his confrontation clause claim. Acknowledging that

the “in custody” jurisdictional concept had been expanded to encompass those whose

liberty was restrained by terms of parole, e.g., Jones v. Cunningham, 

(1963); or who were in custody on one conviction and sought to challenge a conviction

for which a consecutive sentence had yet to commence, e.g., Peyton v. Rowe, 

(1968); or who collaterally challenged the conviction while still in custody but were

subsequently released and subjected to “‘disabilities and burdens’” emanating from the

assailed conviction, e.g., 

, we found that a petitioner challenging

a conviction for which a suspended sentence was imposed lacked the requisite

“‘substantial stake in the [attacked] judgment’” because “[a] ruling in petitioner’s favor

could afford him no direct relief from his present detention, nor indirectly in terms of his

ultimate release date.” 

.

       Dessus is controlling here. As in Dessus, Wells is challenging a conviction on a

count for which the sentence was suspended. As in Dessus, Appellant is not detained

pursuant to the conviction he is challenging, nor is there a possibility of detention as a

consequence of the PCOA conviction. As in Dessus, “[a] ruling in petitioner’s favor


   5
     While the Supreme Court has “very liberally construed the ‘in custody’ requirement
for purposes of federal habeas,” the Court has “never extended it to the situation where a
habeas petitioner suffers no present restraint from a conviction.” Maleng v. Cook, 

, 492 (1989). In Maleng, the Court held that a habeas petitioner is not “in
custody” under a conviction following expiration of the sentence imposed for it simply
because the assailed conviction may be used to enhance a sentence imposed on a future
conviction. 

                                              10
could afford him no direct relief from his present detention, nor indirectly in terms of his

ultimate release date.” See 

“in custody” prerequisite is not met in

the instant petition and this court is “without jurisdiction to review a petition for habeas

corpus where petitioner was given a non-custodial sentence.” See 

       For the foregoing reasons, this Court lacks jurisdiction over Appellant’s challenge

to the validity of the PCOA conviction. Because our certificate of appealability was

limited to the PCOA conviction, we will not address the District Court’s finding that

Wells procedurally defaulted his ineffective assistance of appellate counsel claim, which

concerned the murder, aggravated assault, and conspiracy charges, but not the PCOA

charge. Accordingly, the District Court’s dismissal of Appellant’s habeas corpus petition

will be affirmed.




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