Koch, designated "Plaintiff" in the petition, will be returning
to the Schuylkill County Prison to serve 18 months of
incarceration as a result of a parole violation. At the time the
petition was filed, Koch was incarcerated at SCI-Waymart, with a
release date of April 11, 2000, which would be the expiration of
his maximum sentence.
In October, 1994, Koch was incarcerated at the Schuylkill
County Prison and suffered a fractured rib. The doctor who saw
Koch diagnosed the injury as a rib contusion or bruise. Koch was
discharged after 39 days and was examined immediately at the
Pottsville Hospital and Warne Clinic. An x-ray revealed "a
partially healing nondisplaced fracture of the left tenth rib
posterolaterally associated with slight callus formation bridging
the fracture site." Petition at 2 ¶ 4. No x-ray was taken at the
Prison. Although the rib healed, Koch was forced to suffer
extreme discomfort and was not provided a wrap to immobilize the
rib, causing a risk of further serious injury.
No date is provided for a second incident alleged by Koch.*fn4
He complained to an unnamed person that he was not feeling well
and asked to be taken to the hospital. He was told that the only
way he would be leaving was in a body bag. Koch's condition
worsened and he asked again to be taken to the hospital. He was
told to stop crying about the matter. Koch then called his
brother, who posted bail to take Koch to the Pottsville Hospital,
where he was diagnosed with pneumonia.
According to Koch, his medical records would reflect these
At the time the petition was filed, Koch was to begin
undergoing interferon injections for hepatitis at SCI-Waymart. He
claims that a return to the Schuylkill County Prison would be
detrimental to his health based on his prior experiences. Also,
Koch has newspaper clippings which show that the Prison is having
other, unspecified "problems" which warrant issuance of a
temporary restraining order and a preliminary injunction to bar
his return to the Prison.
In his ad damnum clause, Koch seeks only a hearing and a
temporary restraining order and/or a preliminary injunction. Koch
nowhere alleges that any conviction or the parole revocation
violates the Constitution or laws of the United States.
II. PRELIMINARY MATTERS
Before proceeding to the more extensive analysis occasioned by
Koch's petition, we address some preliminary matters. We note
first that the request for injunctive relief is not properly
before the court. Injunctive relief is granted by order of court.
Fed.R.Civ.P. 58(2) (requiring court order for entry of judgment
for "other relief"), 65(d) (requiring court order for preliminary
injunction or temporary restraining order). Any request for
relief from the court (other than final relief) or an order must
be in writing and must state both the relief or order sought and
the grounds therefor. Fed.R.Civ.P. 7(b)(1). No writing satisfying
this requirement has been filed with respect to the request for
preliminary injunctive relief.
We construe the first document filed by Koch as a motion for a
writ of habeas corpus ad prosequendum for purposes of his
presence at any hearing or trial of this matter. No hearing or
trial has been scheduled and the motion is premature. For
statistical purposes, it will be denied. For Koch's benefit, we
note that a writ will issue without request should the court
schedule any proceeding requiring his presence.
III. AEDPA PROVISIONS
As will be discussed in the context of the cases we consider,
there are several statutory provisions enacted as part of AEDPA
which are relevant to the issue at hand. Primary among these are
the new requirements concerning second or successive motions and
petitions. AEDPA § 105(2), 110 Stat. 1220; AEDPA § 106(b), 110
Stat. 1220-1221. A claim asserted in a second or successive
motion or petition that was presented in a prior motion or
petition must be dismissed. 28 U.S.C. § 2244(b)(1), 2255.*fn5
If a new claim is raised in a second or successive motion or
petition, the applicant must move in the appropriate court of
appeals for certification that the claim meets certain
requirements. Sec. 2244(b)(3)(A)-(C). The requirements are that
the claim relies on a new rule of constitutional law made
retroactive by the Supreme Court or a factual predicate which
could not have been discovered previously despite diligence on
the part of the applicant, and the facts, if proven, would be
sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the applicant guilty but
for constitutional error. Sec. 2244(b)(2).
Also relevant is the new statute of limitations. AEDPA § 101,
110 Stat. 1217; AEDPA § 105(2), 110 Stat. 1220. Both a petition
under § 2254 and a motion under § 2255 are subject to a one-year
statute of limitations. Secs. 2244(d), 2255 (sixth unnumbered
paragraph). The events which cause the time to begin to run are
set forth in each statute, but the limitations period is subject
to equitable tolling. Miller v. N.J. State Dept. of
Corrections, 145 F.3d 616, 617-618 (3d Cir. 1998) (motion under
§ 2255 but noting, at145 F.3d at 619 n. 1, that AEDPA issues
under both sections interchangeable if analytically required).
The effect of these provisions is that an applicant for
collateral relief would be prudent to include all potential
claims in a timely motion or petition, lest he or she find that
the claim is barred. Given the substantial obstacles faced by a
pro se litigant, and particularly one who is incarcerated, such
as an absence of legal training and difficulty in accessing legal
materials, it is highly unlikely that this type of prudence will
be practiced by a pro se litigant pursuing a collateral
challenge of a criminal conviction.
IV. CASE LAW
A. Adams v. United States
The concern for a pro se litigant's ability to present all of
his or her claims in a single application is at the heart of the
Second Circuit's opinion in Adams. In that case, the movant was
convicted of various offenses in 1995 and was sentenced to life
in prison, plus 65 years. Id. at 582. Acting pro se, he filed
a motion invoking Fed.R.Crim.P. 12(b)(2), captioned as a motion
to dismiss, contesting the district court's jurisdiction. Id.
at 582-583. The district court construed the application as a
motion under § 2255 and denied it. Id.
The movant then attempted to withdraw the motion, indicating
that he was planning to present all of his "habeas claims" in a
single motion which might be barred as successive due to the
district court's action. The district court denied the request to
withdraw the motion as moot. Id.
The Second Circuit first reviewed the history of the common
practice of converting applications for collateral relief:
Prior to the enactment of AEDPA, district courts
routinely converted post-conviction motions of
prisoners who unsuccessfully sought relief under some
other provision of law into motions made under
28 U.S.C. § 2255 and proceeded to determine whether the
prisoner was entitled to relief under that statute.
This was done most frequently in the cases of pro se
litigants who sought relief under a statute or rule
that accorded no relief — often Fed.R.Crim.P. 35 — in
order to determine whether they might be entitled to
relief under § 2255, without
obligating them to replead their motions. In order to
relax formalities that might needlessly frustrate pro
se petitioners and because the practice was harmless,
we affirmed that practice. See, e.g., United States
v. Detrich, 940 F.2d 37, 38 (2d Cir. 1991) (treating
motion nominally brought under Fed. R.Crim.P. 35(a)
as motion pursuant to § 2255) [, cert. denied,
502 U.S. 1121, 112 S.Ct. 1242, 117 L.Ed.2d 475 (1992)].
The district court followed that well-established
practice in this case.
Adams at 583.