IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 25, 2010
BENJAMIN WAYNE MERRING, PETITIONER
JANINE DONATE, ET AL., RESPONDENTS
The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Petitioner Benjamin Wayne Merring ("Petitioner" or "Merring"), an inmate presently confined at the Lackawanna County Prison in Scranton, Pennsylvania, commenced this pro se action by filing a Petition for Writ of Habeas Corpus ("Petition"). (Doc. 1.)
Although Merring did not characterize his Petition as having been filed under the provisions of 28 U.S.C. § 2254, because he is in custody pursuant to the judgment of a State court, in our December 16, 2009 Order, we determined that his Petition is cognizable under 28 U.S.C. § 2254, and construed it as such. (Doc. 4.) In that same Order, 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), we issued a formal notice to Merring that he either could have his Petition ruled on as filed, or withdraw his Petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Id.)
After requesting an extension of time to file his Notice of Election, which was granted, on March 24, 2010, Merring filed a Notice of Election. (Doc. 10.) Although Merring did not utilize the form Notice of Election that was attached to this Court's December 16, 2009 Order, he provided a handwritten Notice in which he states that he chooses to withdraw his Petition as filed so that he may file one, all-inclusive petition. (See id.) Our December 16 Order stated that "[i]f Petitioner decides to file an all-inclusive § 2254 petition raising all grounds for relief, Petitioner's Notice of Election form must also be accompanied by his new § 2254 petition. If the new § 2254 petition does not accompany the Notice of Election, the Court will dismiss this case without prejudice." (See Doc. 4 ¶ 3.) Because a new § 2254 petition did not accompany Merring's Notice of Election, his Application for leave to proceed in forma pauperis (Doc. 2) will be granted for the sole purpose of filing the Petition, and the Petition (Doc. 1) will be dismissed without prejudice. An appropriate Order will enter.
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