United States District Court, M.D. Pennsylvania
September 20, 2005.
MARK WALLACE a/k/a MARK GREEN, Petitioner,
SUPERINTENDENT, SCI-CAMP HILL; and and ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Before the court is a report of the magistrate judge in which
he recommends that the instant petition for writ of habeas corpus
be denied as well as the motions for preliminary injunctions. The
instant habeas petition raises the following issues: (1) that
Petitioner was denied bail without a statement of reasons in
violation of his Fourteenth Amendment due process rights; and (2)
that his equal protection rights are being violated because he
has been denied credit for presentence incarceration time. The
court will adopt the recommendations but for reasons stated
The background of this case is set forth in the report of the
magistrate judge. For the purposes of this memorandum, it is
important to note the following history. Petitioner has filed
four habeas petitions in the Eastern District of Pennsylvania*fn1 and the instant petition in the Middle
District of Pennsylvania filed on July 16, 2004. All of the
habeas petitions arise as a result of an underlying conviction in
Philadelphia County to Information No. 950, November Term, 1998.
In No. 03-1741 and No. 04-2881, both filed in the Eastern
District of Pennsylvania, the bail issue was raised. By order of
April 14, 2005, Judge Kelly of that district court decided this
issue adverse to Petitioner.
The issue of credit before sentencing first appears in the
On February 17, 2004, in Eastern District Case No. 02-6269,
Judge Robreno held that the issues arising in Petitioner's
filings had not been exhausted in the state courts and that the
appeals process in the state courts were available to Petitioner.
See Green a/k/a Wallace a/k/a Brown v. Dragovich, 2004 U.S.
Dist. LEXIS 2454 (Feb. 17, 2004).
In his objections to the report and recommendation, Petitioner
continues to object to the magistrate judge's conversion of his
original petition filed pursuant to 28 U.S.C. § 2241 to a filing
pursuant to 28 U.S.C. § 2254. The language of 28 U.S.C. § 2254(a)
refers generally to an application "on behalf of a person in
custody pursuant to the judgment of a state court . . . on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States." "[T]his statute in effect
implements the general grant of habeas corpus authority found in
§ 2241. . . ." Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001). Petitioner is
in custody pursuant to a judgment of a state court; therefore, §
Petitioner further argues that he was not given notice that his
petition was being converted from a § 2241 to a § 2254 petition.
However, on March 8, 2005, the magistrate judge issued an
Administrative Order with Notice of Limitations advising
Petitioner of this action. The docket shows proof of mailing to
Petitioner at his correct address. No return of the document was
received by the Clerk of Court.
Petitioner also objects to the magistrate judge's disposition
of the bail issue and the alleged failure to rule on the pretrial
custody credit. As noted above, the bail issue was decided on the
merits by Judge Kelly of the Eastern District of Pennsylvania.
This court, therefore, considers this issue to be moot.
As to the pretrial custody credit, the failure to exhaust
requirement has not been met. Judge Robreno has held that
Petitioner must return to state court to exhaust the claims.
Green a/k/a Wallace a/k/a Brown v. Dragovich, 2004 U.S. Dist.
LEXIS 2454 (Feb. 17, 2004). The claims in the instant petition
arise from the same state court judgment and are therefore
implicated in the same state court appeal. ORDER
In accordance with the foregoing discussion, IT IS HEREBY
1) The court adopts the recommendation only of Magistrate Judge
2) The petition is dismissed with prejudice on the bail issue
raised in the petition.
3) The petition is dismissed without prejudice on the pretrial
custody credit issue.
4) This court declines to issue a certificate of appealability.
5) The Clerk of Court shall close the file.
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