    Case: 14-4757    Document: 003111998508          Page: 1     Date Filed: 06/23/2015




                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 14-4757
                                      ___________

                                 ISAAC K. FULLMAN,
                                                Appellant

                                             v.

  THOMAS KING KISTLER; KARLA MCCOOL; SGT. MATTHEW SHUPENKO;
JEFFREY HEFFRICH; JEFFREY T. HITE; MICHAEL WOODS; JOHN PENNYMAN;
           M. GORDEN; JEANNA ANANEA; BRYAN CRAMER
                ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 4-14-cv-01739)
                      District Judge: Honorable Matthew W. Brann
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 27, 2015

               Before: FUENTES, SHWARTZ and ROTH, Circuit Judges

                              (Opinion filed: June 23, 2015)

                                      ___________

                                       OPINION*
                                      ___________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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PER CURIAM

       Isaac Fullman appeals pro se from the District Court’s December 3, 2014 order

entered in Civil Action No. 4:14-cv-01739, which dismissed his complaint without

prejudice to his ability to file a habeas petition under 28 U.S.C. § 2254.1 For the reasons

that follow, we will affirm the District Court’s order.

                                              I.

       In 2010, the Court of Common Pleas of Centre County, Pennsylvania, convicted

Fullman of, inter alia, driving under the influence (“DUI”) and driving while his license

was suspended or revoked. Fullman was sentenced to a prison term of ten days to two

years for the DUI offense, with a concurrent 90-day prison term for driving while his

license was suspended/revoked. After the Pennsylvania Superior Court affirmed the

judgment of sentence on direct appeal, Fullman filed a pro se petition in the trial court

pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”). The trial court

appointed counsel, who filed an amended petition on Fullman’s behalf. The trial court

subsequently denied PCRA relief, the Superior Court affirmed that judgment, and the

Pennsylvania Supreme Court denied review.




1
 On that same day, the District Court dismissed a complaint filed by Fullman in another
case (Civil Action No. 4:14-cv-01740). We address his appeal from that judgment in a
separate opinion. See C.A. No. 14-4758.

2
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       Thereafter, Fullman filed a pro se civil complaint in the District Court, seeking to

“appeal” from the state courts’ rulings in his PCRA case, and asking the District Court to

reverse his conviction. The complaint was referred to a United States Magistrate Judge,

who screened the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). On September 9,

2014, the Magistrate Judge issued a report recommending that the District Court dismiss

the complaint. The Magistrate Judge concluded that the Rooker-Feldman and res

judicata doctrines combined to bar review of the complaint, that a § 2254 habeas petition

was the proper vehicle for challenging Fullman’s conviction, and that the dismissal of

Fullman’s complaint should be without prejudice to his ability to file such a petition.

       Fullman filed objections to the Magistrate Judge’s report on September 30, 2014.

That same day, Fullman filed a pro se § 2254 habeas petition, which was assigned a

separate District Court docket number (Civil Action No. 3:14-cv-01899). On October 16,

2014, District Judge James M. Munley dismissed that petition for lack of jurisdiction

because Fullman was not “in custody” for habeas purposes when he filed it. See Maleng

v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam). Fullman did not appeal that

dismissal.

       On December 3, 2014, District Judge Matthew W. Brann adopted the Magistrate

Judge’s September 9, 2014 report and dismissed Fullman’s complaint. It appears that

Judge Brann may have been unaware of Fullman’s habeas case, for Judge Brann’s order

(1) indicated that the complaint’s dismissal was without prejudice to Fullman’s filing a

habeas petition, and (2) directed the District Court Clerk to mail Fullman two blank
3
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copies of the court’s standard habeas form. On December 16, 2014, Fullman filed a

notice of appeal challenging Judge Brann’s decision. That same day, Fullman filed

another pro se § 2254 petition challenging his 2010 conviction; that petition was assigned

Civil Action No. 3:14-cv-02380. Judge Munley dismissed this second petition — for the

same reason given in his earlier decision — and later denied Fullman’s related motion to

reconsider. Fullman has not filed an appeal in that case.

       Fullman’s appeal from Judge Brann’s order is now ripe for disposition.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise

plenary review over the District Court’s dismissal of Fullman’s complaint. See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). 2 We may affirm on any basis supported by

the record. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

       Fullman’s complaint is, at bottom, a collateral challenge to the legality of his

conviction. Indeed, in seeking to “appeal” from the rulings in his PCRA case, he attacks

the method by which his blood alcohol content was measured, and asks that his

conviction be reversed. The District Court correctly concluded that a § 2254 habeas

petition, not a civil complaint, was the proper vehicle for bringing such a challenge. See

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Although the District Court could have


2
  Although the District Court’s dismissal was without prejudice, that order is nevertheless
final and appealable because Fullman can do nothing to cure his complaint. See
Presbytery of N.J. of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1461 n.6
(3d Cir. 1994).
4
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liberally construed Fullman’s complaint as a habeas petition, there was no need to do so.

At the time the District Court adjudicated the complaint, Fullman had already filed a

proper habeas petition and obtained a ruling from the court on that petition. 3

Accordingly, we agree with the District Court’s decision to dismiss his complaint. 4

       In light of the above, we will affirm the District Court’s December 3, 2014 order.

Fullman’s motion for appointment of counsel is denied.




3
  Fullman’s complaint was filed just 22 days before his first habeas petition. Even if, for
habeas purposes, Fullman had been given the benefit of that earlier filing date, it appears
that the outcome of his habeas case would not have changed because there is no
indication that he was still “in custody” at the time he filed his complaint. See Maleng,
490 U.S. at 491 (“We have never held . . . that a habeas petitioner may be ‘in custody’
under a conviction when the sentence imposed for the conviction has fully expired at the
time his petition is filed.”).
4
  We need not consider the District Court’s determination that dismissal was also
warranted pursuant to the Rooker-Feldman and res judicata doctrines.
5
