United States District Court, E.D. Pennsylvania
February 17, 2004.
MARK GREEN, a/k/a, MARK WALLACE a/k/a, MARK BROWN, Plaintiff,
MARTIN DRAGOVICH, ET AL., Defendants
The opinion of the court was delivered by: EDUARDO ROBRENO, District Judge
This case comes before the Court as a writ of habeas corpus brought
under 28 U.S.C. § 2254. The underlying conviction giving rise to the
custody of Mark Green (hereinafter "petitioner") occurred on September 8,
2000, when a jury sitting in the Philadelphia Court of Common Pleas found
petitioner guilty of one count of conspiracy to commit arson. As set
forth in the amended petition, petitioner's claim for habeas relief is
based on the alleged ineffective assistance of his counsel to recognize
and object to a double jeopardy violation which arose during the jury
trial. For the following reasons, the petition shall be denied without
prejudice. The Court finds that petitioner has failed to exhaust the
remedies available to him at the state level and will not excuse the
exhaustion requirement found in 28 U.S.C. § 2254(b) based on delay
asserted by the petitioner to be
inexcusable or inordinate.
Some ten months prior to the jury trial where petitioner was found
guilty, a waiver trial involving the same charges that petitioner
was ultimately found guilty of by the jury sitting in 2000 was
held in December of 1999 in the Philadelphia Court of Common Pleas and
was presided over by the Honorable D. Webster Keogh. However, the waiver
was withdrawn by Judge Keogh and the trial terminated following the
Commonwealth's case-in-chief and during the defense's presentation of its
case. This termination was predicated upon a procedural violation made by
the defense in the timing of the disclosure of an alibi witness.
In the case at bar, petitioner asks this Court to entertain his claim
that he is in custody in violation of the U.S. Constitution because of
the ineffectiveness of his trial counsel during both the jury trial and
the waiver trial. Specifically, petitioner asserts that his counsel
failed to challenge the judge's withdrawal of the waiver during the first
trial and failed to assert a double jeopardy defense based on the
judge's allegedly improper withdrawal of the waiver during the waiver
trial during the jury trial.
The Commonwealth, meanwhile, argues that petitioner has
failed to exhaust his remedies at the state level and that, therefore,
this Court should decline to consider the amended petition on the
merits. In addition, the Commonwealth argues that petitioner's
constitutional rights were not violated because petitioner's counsel was
not ineffective and because there was no underlying double jeopardy
It is clear from the record that the Superior Court of Pennsylvania and
the Supreme Court of Pennsylvania have not yet been presented with
petitioner's direct appeal of the conviction. Thus, as a threshold
matter, the Court must decide whether it should excuse the failure of
petitioner to exhaust his remedies at the state level. Only if the Court
decides this issue in favor of the petitioner will the Court turn to the
underlying merits of the habeas corpus petition.
A. Exhaustion of State Remedies is Required.
Absent a valid excuse, a habeas petitioner must exhaust his remedies at
the state level before asserting his claims in federal court.
28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 515 (1982).
"[E]xhaustion is not jurisdictional, but a matter of comity." Story v.
Kindt, 26 F.3d 402, 405 (3d Cir. 1994). "The exhaustion requirement
ensures that state courts have the first opportunity to review federal
constitutional challenges to state
convictions and preserves the role of the state court in protecting
federally guaranteed rights." Evans v. Court of Common Pleas, Delaware
County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992) (citing O'Halloran v.
Ryan, 835 F.2d 506, 509 (3d Cir. 1987)); see also Rose, 455 U.S. at 515.
However, "inexcusable or inordinate delay by the state in processing
claims for relief may render the state remedy effectively unavailable."
Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d. Cir. 1986). "When such delay
has rendered the State remedy ineffective to protect the rights of the
petitioner," the district court may excuse the exhaustion requirement.
In petitioner's view, the Court should excuse the exhaustion
requirement because of the delay between his conviction and sentencing
and the subsequent delay between sentencing and appellate review of his
conviction. The relevant periods of time referred to by petitioner are as
follows: (a) a nineteen month period between conviction on September 8,
2000 and sentencing on April 12, 2002; (b) a period of ten months
following sentencing and disposition of his motion for reconsideration of
post-trial motions, which was denied on March 13, 2003; (c) an additional
period of time between the filing of a notice of appeal and presentation
of the appeal before the Superior Court. In total, as of the writing of
this opinion, some forty-one months have elapsed since petitioner's
and the Superior Court has not yet ruled on petitioner's direct appeal.
B. Chronology of Events Following Petitioner's Conviction.
To better understand the circumstances surrounding the various delays,
a chronology of events beginning with petitioner's conviction is provided
1. Petitioner is convicted by a jury in the
Philadelphia Court of Common Pleas on September
8, 2000 for conspiracy to commit arson. The trial
is presided over by the Honorable Gary F. Divito.
Sentencing is set for October 25, 2000.
2. On October 25, 2000, a continuance of the
sentencing hearing, to November 22, 2000, is
granted because of the failure of the Commonwealth
to bring the petitioner in from custody.
3. On November 22, 2000, another continuance of
the sentencing hearing is granted to January
24, 2001. The court docket notes indicate that
the continuance was granted at the request of
the defense. Once again, however, petitioner
was not brought down to the courthouse.
4. A continuance to February 5, 2001 "per chambers"
is ordered on January 24, 2001.
5. On February 5, 2001, a continuance to March 9,
2001 is granted at the request of defense
counsel. The court docket notes that "petitioner
was brought down today" (emphasis in
original). However, petitioner represents
that there was no colloquy to determine if
petitioner consented to the continuance.
6. On March 9, 2001, yet another continuance to
April 20, 2001 is issued because petitioner
was not brought down to the courthouse.
7. On April 17, 2001, petitioner files post-verdict
motions raising issues of double jeopardy,
insufficiency of evidence, prosecutorial
misconduct, and erroneous jury instructions.
8. On April 20, 2001, petitioner was not brought down
to the courthouse for a scheduled hearing. A
continuance until June 4, 2001 is granted.
9. Petitioner files a supplemental post-verdict
motion on May 29, 2001.
10. A second continuance from chambers is issued
by the judge on June 4, 2001. A hearing is set
for June 29, 2001 at this time.
11. On June 29, 2001, petitioner is brought down
to the courthouse, but his counsel requests a
continuance for "argument and sentencing."
12. On August 20, 2001, the petitioner files a motion
to proceed pro se based on his counsel's request
for continuances, which the petitioner represents
Following a hearing on the matter, the court
permitted petitioner's counsel to withdraw and
appointed Murray B. Dolfman, Esq. to represent the
petitioner. Sentencing is continued until
September 19, 2001.
13. A continuance until September 28, 2001 is
issued by the court on September 19, 2001
because the "judge [was] not sitting". On
September 28, 2001, another continuance is
ordered "per chambers" to October 26, 2001. At
this point, over one year has elapsed since
petitioner's conviction. 14. Defendant files
another post-verdict motion on October 9,
15. On October 26, 2001, sentencing is continued
again because defendant's post-verdict motions
were not briefed by the Commonwealth. The
Commonwealth was ordered to file briefs by
November 14, 2001 and the hearing continued to
November 30, 2001.
16. On November 30, 2001, the prosecuting attorney
fails to make his appearance in the hearing.
Because an assistant prosecuting attorney is not
prepared to address the post-trial motions, the
hearing is continued to January 18, 2002.
17. There is no docket entry for January 18, 2002,
but on February 5, 2002 the case is continued
"per chambers" to March 8, 2002.
18. Petitioner files a petition for writ of habeas
corpus in the
Superior Court on February 6, 2002. The petition
is denied on March 6, 2002 by the Superior Court
without review of the merits. According to the
order denying the petition, the Supreme Court has
original jurisdiction to issue a writ on the lower
court where no appeal is pending.
19. On March 8, 2002, Mr. Dolfman is allowed to
withdraw. Eugene P. Tinari, Esq. makes an
appearance on behalf of petitioner. The petitioner
is not brought down again and sentencing is
deferred until April 12, 2002.
20. Mr. Tinari is permitted to withdraw his appearance
on March 14, 2002 and Mr. Dolfman, having
withdrawn once already, is reinstated.
21. On April 9, 2002, petitioner files an Application
for Extraordinary Relief in the Supreme Court of
Pennsylvania. The Application is denied, without
opinion, by the Supreme Court on July 22, 2002.
22. On April 12, 2002, the Honorable Rose Marie
DeFino, sitting in place of Judge Divito,
denies petitioner's post-trial motions and
sentences the petitioner. On April 16, 2002,
petitioner files a motion for reconsideration
of sentence and post-sentence motions. A June
7, 2002 hearing date is set to consider the
motion for reconsideration.
23. Petitioner is not brought down to the courthouse
on June 7, 2002 and July 23, 2002 necessitating a
continuance on each
24. On July 31, 2002, petitioner files the instant
habeas corpus petition. Petitioner asserts, as
grounds for habeas relief, violations of his
constitutional rights to a speedy trial, due
process, and prohibition against double jeopardy.
Petitioner also asserts insufficiency of
evidence, prosecutorial misconduct and abuse of
discretion and judicial error.
25. This court refers the case to a magistrate
judge on August 12, 2002.
26. On September 25, 2002 and October 28, 2002,
petitioner is not brought down to the courthouse
for hearings on his post-trial motions and the
case is continued on each of these occasions.
27. On December 19, 2002, Mr. Dolfman is once again
permitted to withdraw and a third attorney,
William Cannon, Esq., enters an appearance on
behalf of petitioner. Petitioner is not brought
down this day due to "joint state/federal custody
28. Petitioner, under the name of Mark Green, files a
second habeas corpus petition, no. 03-95, on
January 8, 2003. The case is assigned to the
Honorable Jay C. Waldman, who dismisses the
petition on January 30, 2003 without prejudice.
29. On January 23, 2003, a continuance is granted
because Mr. Cannon is on trial elsewhere.
30. On February 12, 2003, petitioner's motion for
reconsideration is denied by operation of law
pursuant to Pa. R. Crim. P. Rule 720. A notice of
appeal is timely filed on March 12, 2003.
Twenty-nine months have elapsed since petitioner's
31. Another habeas petition under the name of Mark
Brown is filed by petitioner on March 25, 2003 and
docketed as no. 03-1741. The Honorable Edmund V.
Ludwig denies the petition with prejudice as
successive to the instant petition.
32. Judge Divito issues an order pursuant to Pa. R.
App. P. Rule 1925(b) on May 22, 2003 requiring
petitioner to file a concise, self-contained and
intelligible statement of the appeal.
33. Petitioner files a Rule 1925(b) statement on
June 4, 2003.
34. The magistrate judge handling the instant habeas
petition, after granting the Commonwealth numerous
extensions to file a response, issues a report and
recommendation on August 19, 2003 recommending
that the petition be denied for failure to exhaust
35. On October 27, 2003, petitioner writes Judge
Divito requesting that an opinion be filed so
that the appellate process may go forward.
36. Judge Divito responds to petitioner's letter
on November 4, 2003 and indicates that because
he was not the sentencing judge, he is not
responsible for the final disposition of the
case. Also on this date, this Court orders the
appointment of counsel to represent petitioner
in the instant habeas corpus proceeding.
37. Petitioner files a motion for bail in this Court
on December 23, 2003. Following a hearing, this
Court denies the motion for bail on January 26,
2004 and a hearing on the amended petition is
scheduled for February 6, 2004.
38. On January 14, 2004, the Superior Court of
Pennsylvania orders that Judge Devito file an
opinion pursuant to Rule 1925(a), that the
trial court transmit the record in the matter
to the Prothonotary of the Superior Court, and
that the Prothonotary of the Superior Court
establish a briefing schedule.
39. Judge Devito files an opinion responsive to
petitioner's Rule 1925(b) statement on February
40. A hearing is held in this Court on the instant
amended petition on February 6, 2004.
C. Analysis of the Delay.
Before going any further, the Court notes the Third Circuit's teaching
that, "[a]lthough the existence of an inordinate delay does not
automatically excuse exhaustion, it
does shift the burden to the state to demonstrate why exhaustion should
still be required a burden that is difficult." Story, 26 F.3d at 405.
Thus, for the purposes of analyzing the issue of whether or not to excuse
the exhaustion requirement, the Court shall (a) first, determine if
petitioner has established the existence of inordinate delay; and (b)
then, determine if the Commonwealth has demonstrated why exhaustion
should still be required.
1. Petitioner's Burden to Establish the Existence of Inordinate Delay.
As noted, petitioner argues that the various delays following his
conviction should excuse the exhaustion requirement because they rise to
the level of inordinate or inexcusable delay.*fn1 According to
petitioner, the causes for the delays are
mostly attributable to the Commonwealth. Petitioner specifically points
to the Commonwealth's repeated failures to bring down the petitioner to
the courthouse for scheduled sentencing hearings and post-verdict motion
hearings, the numerous continuances ordered "per chambers," and the
continuance requested by the Commonwealth caused by the lack of
preparedness of the district attorney. In addition, petitioner argues that
the continuances requested by his own counsel should be chargeable to the
government because these continuances were requested outside of
petitioner's presence and without his consent and approval. The only
period of delay in the chronology provided above which the petitioner does
not charge to the Commonwealth is the delay between January 23, 2003 to
February 12, 2003 (nineteen days), which was necessitated by petitioner's
counsel's appearance before another court in a separate matter.
The Commonwealth generally accepts petitioner's chronology as factually
accurate, but disagrees with the petitioner's characterization as to who
should be charged for the various delays. Specifically, the
Commonwealth, citing Barker v. Wingo, 407 U.S. 514, 530 (1972), contends
that the failure to bring down the petitioner from the prison to the
courthouse was unintentional and the lack of mens rea on the
Commonwealth's part should be factored into the Court's analysis as to
whether the delay was inordinate or excusable. Relying on Wells v.
941 F.2d 253, 257 (3d Cir. 1991), the Commonwealth also argues that
petitioner's lack of consent to the continuances requested by his counsel
should not be factored into this Court's calculus in determining whether
or not to excuse exhaustion. In the Commonwealth's view, Wells stands for
the proposition that motions for continuance may be granted outside the
defendant's presence. Finally, the Commonwealth asserts that the
petitioner is not completely faultless because the numerous withdrawals
and appearances by different counsel were allegedly made at petitioner's
At the outset, it should be noted that the Commonwealth's reliance on
Barker is misguided because that case involved a speedy trial violation
and the threshold question of whether or not to excuse exhaustion is
separate and distinct from the issue of whether or not a speedy trial
violation has occurred. In Barker, instead of adopting an inflexible
fixed-time period approach or a demand-waiver rule, the Supreme Court
adopted a balancing test in which the conduct of both the defendant and
the prosecution are weighed in determining whether or not a violation had
occurred for speedy trial purposes. 407 U.S. at 529-30. According to the
Court, factors which might be considered are the length of delay, the
reason for delay, the defendant's assertion of his right, and prejudice
to the defendant. Id. at 530. Although the Commonwealth argues
otherwise, the Barker factors have not been applied in this circuit for
determining whether or not the exhaustion requirement should be excused
in a habeas petition. See, e.g., Wojtczak, 800 F.2d at 354-55; Story, 26
F.3d at 405-06; Cristin v. Brennan, 281 F.3d 404 (3d Cir. 2002).
Even if the Court were to apply Barker here, the Third Circuit has
indicated that delays attributable to the court are to be charged
against the Commonwealth for the purposes of analyzing speedy trial
delays. See Burkett v. Fulcomer, 951 F.2d 1431, 1439-40 (3d Cir. 1991)
("The reason for the additional delay crowded court calendars and the
court reporter's delay in filing transcripts must be weighed against
the government rather than Burkett."). Thus, Barker does not advance the
In Wells, The Third Circuit explicitly did not decide the issue of
whether or not a defendant's counsel could waive a defendant's right to a
speedy trial without his defendant's personal consent. 941 F.2d at 256-57
(stating that "we do not need to decide whether this right [to a speedy
trial] is so fundamental and personal that it can be waived only with the
defendant's personal consent"). Instead, that court indicated that
"[w]hen the reason for the delay originates with the defendant or his
counsel, such delay will not be considered for purposes of determining
whether the defendant's right to a speedy
trial has been infringed." Id. at 258. Again, the analysis in the case
cited by the Commonwealth relates to a speedy trial delay, which is not
the issue before the Court at this time.
The most relevant Third Circuit case based on its factual similarity
and on-point analysis of the very legal issues raised in the case at bar
is Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987). In this appeal,
Wayne Paul Burkett filed two habeas corpus petitions in federal court in
the Western District of Pennsylvania. The first petition was based on a
November 1981 conviction (nos. 140/141) and a January 1982 conviction for
a separate crime (no. 161). Id. at 1211. The second petition was based on
a January 1983 conviction (no. 284). Id. at 1212. As of March 1985,
Burkett had not been sentenced in any of his three convictions because
post-verdict motions in no. 161 and no. 284 had been briefed but not
argued, and briefing had not been scheduled in nos. 140/141 because no
transcripts were filed. Id.
Burkett filed a federal habeas corpus petition in March of 1985. The
district court adopted the report and recommendation of the magistrate
judge and excused the exhaustion requirement because of inordinate
delay, but proceeded to deny the petition unless the Commonwealth
sentenced the petitioner within sixty days of the date of its opinion
(i.e., May 30, 1985). Id. at 1213. A certificate of probable cause to
appeal was denied "without prejudice to filing a new petition in the
district court." Id.
On April 2, 1985, the state court denied Burkett's post-trial motions
in no. 284 and sentenced him on June 24, 1985. Id. at 1213. The records
for no. 284 were transferred to the Superior Court on January 2, 1986.
Id. at 1215. The case was remanded to the trial court for thirty days so
that new counsel could be appointed and after counsel was appointed on
April 9, 1986, the record returned to the Superior Court on July 16,
1986. Id. The Superior Court denied the appeal on January 12, 1987 and
denied rehearing on February 26, 1987. Id.
In no. 161, Burkett's post-verdict motions were denied on June 7, 1985
and sentencing took place on July 10, 1985. An opinion on post-verdict
motions was filed on May 8, 1987, but a sentencing opinion was not filed
at the time of the opinion. Id. at 1215.
As for nos. 140/141, a hearing on post-verdict motions was held on
August 21, 1985 despite the failure of the court reporter to produce
trial transcripts. Id. At the time of the Burkett opinion, no ruling had
been made on the motions in conviction nos. 140/141 and sentencing had
not yet occurred. Id. The final trial transcript was filed on October
22, 1985, but as of the time of the opinion, a hearing on the
post-verdict motions had not been held. Id.
Although the Burkett decision was filed by the Third
Circuit in July 1987, the court found that the delay as of May 1985 "was
already sufficient to excuse exhaustion." Id. at 1218. As of May 1985,
approximately forty-two months had elapsed since the conviction in nos.
140/141 and approximately forty-months had elapsed since the conviction
in no. 161. Twenty-seven months had elapsed since the conviction in no.
Notwithstanding its finding as to the progression of the three
convictions in May 1985, the Burkett court dismissed no. 284 for failure
to exhaust state remedies explaining that the case "now appears to be
proceeding normally." Id. at 1218 (emphasis added). As for conviction
nos. 140/141 and no. 161, however, the court found that there was "no
indication that the Pennsylvania appellate courts [would] soon receive
140/141 or that they will soon dispose of 161. . . ." Id. "Because of the
continued delay" in these two cases, the court found that "Burkett ha[d]
exhausted his state remedies in this proceeding." Id.
Turning to the case at bar, the Court notes that there was a nineteen
month delay between petitioner's conviction and sentencing and an
additional ten month delay between sentencing and final disposition of
his post-trial motions. The total delay between conviction and final
disposition of petitioner's post-trial motions was approximately
twenty-nine months, which is approximately two months longer than the
twenty-seven month delay
between conviction and final disposition of Burkett's post-trial
motions in no. 284, which the Third Circuit found to be sufficient to
excuse exhaustion as of May 1985.
The Court agrees with the petitioner and finds that a great deal of the
delay between conviction and sentencing is attributable to the
Commonwealth's repeated and inexcusable failures to bring down the
petitioner to the courthouse for scheduled hearings and unexplained
continuances granted "per chambers." Despite the Commonwealth's arguments
to the contrary, the Court will not charge the time caused by the change
of counsel to the defendant unless there is evidence that the petitioner
himself caused the delay. See Wojtczak, 800 F.2d at 354-55. Indeed, an
argument may be made that the delay caused by the change of counsel may
be attributable to the Commonwealth because of the trial court's
inexplicable "willingness to permit appointed counsel to withdraw at
will." Id. Further, petitioner has represented to the Court that the
continuances requested by his counsel were without his consent and
approval and that on this basis, petitioner sought to have counsel
replaced. The Commonwealth has not made any showing contradicting this
assertion and, therefore, the Court will not count this time against the
On numerous occasions again after the filing of the motion to
reconsider, the Commonwealth failed to bring down the
petitioner to the courthouse for scheduled hearings, including appearances
scheduled for June 7, 2002, July 23, 2002, September 25, 2002, October
28, 2002, and December 19, 2002, a period spanning nine months. It was
not until February 12, 2003, that petitioner's motion for reconsideration
was denied by operation of law pursuant to Pa. R. Cr. P. Rule 720.
Because the delay between conviction and final disposition of
petitioner's post-trial motions is sufficiently close to the delay found
to be inexcusable in no. 284 of Burkett, the Court concludes that, as of
February 12, 2003, the date on which petitioner's post-trial motions were
finally decided, the delay was both inexcusable and inordinate.*fn2
2. The Commonwealth's Burden to Establish Why Exhaustion Should Not be
As noted, once a habeas petitioner has established inordinate and
inexcusable delay in the state processes, the burden shifts to the
Commonwealth to establish why exhaustion should not be excused. Story, 26
F.3d at 405.
Petitioner filed his notice of appeal in March of 2003, but as of May
of 2003, petitioner had not yet filed a statement
pursuant to Pa. R.A.P. Rule 1925(b), which was necessary for his appeal to
move forward. Thus, Judge Divito ordered petitioner to file a statement
on May 22, 2003. Two weeks later, petitioner filed a statement, but his
appeal could not proceed because an opinion had not been filed by the
judge presiding over his case. See Pa. R.A.P. Rule 1925(c). It was not
until late October of 2003, that petitioner addressed this issue and
wrote the presiding judge to request that an opinion be issued. After
some confusion about whether the presiding judge (Judge Divito) or the
sentencing judge (Judge DeFino) should prepare the opinion and some back
and forth between petitioner's counsel and the presiding judge, the
Superior Court, upon motion, ordered Judge Divito to prepare and file an
opinion on January 14, 2004. Judge Divito filed his opinion on February
In light of the events following the disposition of petitioner's
post-trial motions and the subsequent efforts made by the trial judge and
the Superior Court to advance the case, the Court finds that the
Commonwealth has met its burden of establishing why exhaustion should not
be excused. The Third Circuit has "instructed district courts to stay
their consideration of habeas petitions when previously stalled state
proceedings resume." Cristin, 281 F.3d at 411 (citing Walker, 53 F.3d at
Following the notice of appeal, the trial judge ordered
petitioner to file a statement of the case, the Superior Court ordered the
judge to prepare an opinion (which according to the Commonwealth is a
routine practice), and the trial judge has filed an opinion. Once
triggered, all these events appear to have occurred consistent with
established practice and the Pennsylvania Rules of Appellate Procedure.
Based on this activity, the Court finds that the case "now appears to
be proceeding normally." Burkett, 826 F.2d at 1218. Moreover, unlike no.
161 of Burkett, where the Third Circuit excused exhaustion, an opinion by
the trial judge in this case was filed by the time a hearing was held.
Unlike nos. 140/141 of Burkett, which were also excused from the
exhaustion requirement, sentencing has occurred and post-trial motions
have been ruled on in this case. Finally, an order directing the
Prothonotoary to transmit the entire record and to schedule briefing is
in place, and this Court has no reason to believe that this order will
not be followed.
At this point, all the pieces for disposition of the direct appeal
appear to be in place. The Commonwealth has indicated that petitioner may
file a motion for expedited review of the case and has expressed to this
Court on two different occasions that it would not oppose such a motion.
Given these circumstances, the Court will not interfere with the normal
state appellate process in the absence of continued delay.
The Court finds that the petitioner has failed the exhaust the state
remedies available to him for review of his conviction. The Court also
finds that the exhaustion requirement need not be excused in this case
because the case appears to be progressing along normally at this point.
Therefore, the case shall be dismissed without prejudice.
An appropriate order follows.
___ AND NOW, this day of February 2004, pursuant to the accompanying
memorandum, the amended petition for habeas corpus (doc. no. 55) shall be
DENIED WITHOUT PREJUDICE.
AND IT IS SO ORDERED.