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NOLAN v. WYNDER
September 26, 2005.
JAMES NOLAN, Petitioner,
JAMES WYNDER, ET AL., Respondents.
The opinion of the court was delivered by: WILLIAM NEALON, JR., Senior District Judge
The Petitioner, James Nolan, an inmate at the State
Correctional Institute at Dallas, filed the instant petition
pursuant to 28 U.S.C. § 2254 on January 31, 2005 in which he
challenges his conviction and sentence for receiving stolen
property and theft by unlawful taking in the Luzerne County Court
of Common Pleas. (Doc. 2). The history of this case reveals that
in 1991, after a seven month crime spree in two separate
counties, Lackawanna and Luzerne, in which Petitioner and his
accomplices stole more than twenty-five (25) vehicles.
Subsequently, Petitioner pled guilty to nine (9) counts of
receiving stolen property and one (1) count of theft, and was
sentenced to 30 to 60 years imprisonment by the Court of Common
Pleas of Lackawanna County. Having also been charged with similar
crimes in Luzerne County, Petitioner was convicted in that county
of six (6) counts of theft by unlawful taking and five (5) counts
of receiving stolen property, for which he received a term of
21-42 years incarceration, to be served consecutively to his
Lackawanna County sentence.
Presently, Petitioner asserts that his trial counsel was
ineffective for failing to raise, on direct appeal, that the
prosecution by Luzerne County was barred by the compulsory
joinder provisions of 18 Pa.C.S.A. § 110 and double jeopardy
considerations; that his conviction violated double jeopardy; and
that he was denied due process when the Pennsylvania Supreme
Court failed to remand his PCRA appeal to the Superior Court for
consideration of his outstanding claims.
On August 23, 2005, United States Magistrate Judge J. Andrew
Smyser issued a Report and Recommendation (Doc. 25) in which he
recommended that the petition be dismissed under the total
exhaustion rule, finding that it was a "mixed" petition
containing both exhausted and unexhausted claims. Rose v.
Lundy, 455 U.S. 509 (1982). The Magistrate Judge found that the
Petitioner had not exhausted his state court remedies with
respect to his ineffective assistance of counsel and double
jeopardy claims. The issue of whether counsel was ineffective in
failing to challenge the prosecution by Luzerne County under
18 Pa.C.S.A. § 110 was found to have been exhausted. However, as to
his remaining claim that he was denied due process when the
Pennsylvania Supreme Court failed to remand his PCRA appeal to
the Superior Court for consideration of his outstanding claims,
the Report and Recommendation concluded that this issue was moot
in light of a June 9, 2005 order by the Pennsylvania Supreme
Court granting his application for relief and directing the Pennsylvania Superior Court to consider issues raised by
Petitioner that it had not addressed in its earlier review of his
No objections were filed to the Magistrate Judge's Report and
Recommendation. After careful review and in the exercise of sound
judicial discretion, the court will adopt the Magistrate Judge's
Report and Recommendation.
ACCORDINGLY, THIS 26th DAY OF SEPTEMBER, 2005, IT IS HEREBY
(1) The Report and Recommendation (Doc. 25) is
(2) The petition for writ of habeas corpus (Doc. 2)
is Dismissed without prejudice
(3) The request to amend the habeas corpus petition
(Doc. 21) is denied as moot.
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