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 petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241 be dismissed without prejudice to
Petitioner to file a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner has filed objections to the
magistrate judge's report and recommendation. He has also filed a
motion for an extension of time to file objections to the report
and recommendation. The motion for extension of time was filed on
November 18, 2005. The objections to the report and
recommendation were filed on December 1, 2005. The court will
deem the objections timely filed; therefore, the motion for
extension of time will be deemed moot.
Petitioner is challenging his custody by state officials. A
state prisoner may only challenge his conviction and sentence
through a petition filed pursuant to 28 U.S.C. § 2254. Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001).
Petitioner is challenging his custody by state officials. He
asserts that on July 18, 2002, a judge, pursuant to a Post
Conviction Relief Act ("PCRA") proceeding, granted him a new
trial. He claims he is being illegally detained as he has not
been retried. However, he also asserts that the Pennsylvania
Superior Court vacated the PCRA court's order for a new trial.
Thus, at the present time, he is still in custody and the
appropriate form of relief is by way of petition pursuant to
28 U.S.C. § 2254.
The magistrate judge correctly notes that had the Superior
Court's order granted him a new trial and Petitioner was in
custody awaiting retrial, a petition pursuant to 28 U.S.C. § 2241
might have merit. (Report and Recommendation at p. 6 n. 1.)
IT IS THEREFORE ORDERED THAT:
1) Petitioner's objections to the report and recommendation are
deemed timely filed and, therefore, the motion for extension of
time to file objections to the report and recommendation (doc.
23) is deemed moot.
2) The court adopts the report and recommendation (doc. 21) of
Magistrate Judge Smyser.
3) The petition filed pursuant to 28 U.S.C. § 2241 is dismissed
without prejudice to the petitioner filing a petition pursuant to
28 U.S.C. § 2254, provided the requirements of
28 U.S.C. § 2244(b) are met.
4) Petitioner's "Motion for Conformity" (doc. 18) is denied. 5) Petitioner's "Motion to Update the Court on the Status of
the Third Circuit's Decision and to Seek Clarification and/or
Direction of the Court" (doc. 20)*fn1 is denied.
6) This court declines to issue a certificate of appealability.
7) The Clerk of Court shall close the file.
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