UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
January 31, 2006
DONALD L. WASHINGTON, PETITIONER
SCI-COAL TWP. SUPERINTENDENT,: ET AL., RESPONDENTS
The opinion of the court was delivered by: James F. McCLURE, Jr. United States District Judge
Presently pending before this Court is Donald L. Washington's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. The petition presents grounds attacking his conviction or the sentence imposed or both. Washington's sentence was imposed by the Court of Common Pleas of Dauphin County, Pennsylvania. In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Petitioner is advised that (1) he can have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition absent certification by the Court of Appeals, or (2) withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA").
However, if the Petitioner elects to withdraw the instant petition in order to file one all-inclusive petition, he is forewarned that the AEDPA's statute of limitations might bar the filing of any such successive petition.
IT IS HEREBY ORDERED THAT:
1. Petitioner shall within forty-five (45) days of the date of this Order complete and file with the Court the attached Notice of Election.
2. Failure of Petitioner to comply with this Order will result in the Court ruling on the motion, document or pleading as captioned.
NOTICE OF ELECTION
I, petitioner in the above-captioned action, have read the Order of Court which accompanied this form notice. Pursuant to that order, I elect to proceed in this action as follows:
I have labeled my petition as a petition for writ of habeas corpus under 28 U.S.C. § 2254. I choose to have the court rule on my petition as filed. I understand that I may be forever barred from presenting in federal court any claim not presented in this petition. I further understand that by doing so I lose my ability to file a second or successive petition absent certification by the Court of Appeals, and that the potential for relief is further limited in a second or successive petition.
I have labeled my petition as a petition for writ of habeas corpus under 28 U.S.C. § 2254. I choose to withdraw the petition so that I may file one, all-inclusive petition under 28 U.S.C. § 2254 within the one-year limit for filing such a petition. I understand that the AEDPA statute of limitations might bar the filing of any such successive petition.
YOUR ELECTION ON THIS FORM, AS WELL AS THE FAILURE TO MAKE AN ELECTION, WILL BE BINDING ON YOU AS RELATES TO YOUR LITIGATION IN FEDERAL COURT OF ANY CLAIM RELATED TO THE CUSTODY YOU HAVE CHALLENGED. READ CAREFULLY THE ORDER ACCOMPANYING THIS FORM NOTICE OF ELECTION.
I declare under penalty of perjury that the foregoing is true and correct.
_____________________________ (Signature of Petitioner)
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