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Aponte v. Commonwealth

October 29, 2010

HERBERT APONTE, PETITIONER,
v.
COMMONWEALTH OF PA, ET AL., RESPONDENT



The opinion of the court was delivered by: Judge Caputo

MAGISTRATE JUDGE BLEWITT

MEMORANDUM

Presently before the Court is Magistrate Judge Blewitt's Report and Recommendation ("R & R") of October 15, 2010 (Doc. 6), Petitioner's Objections to the Magistrate Judge's R&R (Doc. 7), and Petitioner's Motion to Appoint Counsel (Doc. 8). Magistrate Judge Blewitt recommended that Petitioner's petition for a writ of habeas corpus be dismissed because he does not meet the narrow requirements that would allow this Court to consider a habeas petition under 42 U.S.C. § 2241. This Court will adopt Judge Blewitt's R & R for the reasons discussed more fully below.

BACKGROUND

On January 4, 2007, Petitioner, Herbert Aponte, was convicted of one count of hit and run with his automobile in Monroe County, Pennsylvania and sentenced to a one-year prison term. Petitioner did not file a direct appeal, but initially sought relief under the Pennsylvania Post-Conviction Relief Act ("PCRA"), which provides for post-conviction collateral relief. However, that petition was denied.

On September 24, 2010, Mr. Aponte filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his hit and run conviction on Fourth Amendment grounds, namely, that he was subject to an illegal search at the hands of a police officer. On October 15, 2010, Magistrate Judge Blewitt issued his R & R recommending that the petition for writ of habeas corpus be denied. (Doc. 6.) On October 27, 2010, Petitioner filed his Objections to the R & R, as well as a Motion to Appoint Council. (Docs. 7-8.) No response to these Objections was filed.

STANDARD OF REVIEW

Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).

DISCUSSION

I. Procedural Grounds for a Habeas Corpus Petition

Petitioner can no longer seek relief regarding his Monroe County conviction via a habeas corpus petition since he has fully served his one-year sentence.

28 U.S.C. § 2254 states: "The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody...." 28 U.S.C. § 2254. Quoting Morgan v. Martin, 2006 WL 3544665, *1 (E.D. Pa.), the court in Coss v. Warden of Lackawanna County Prison, 2008 WL 2697147 (M.D. Pa.) stated:

A federal court's jurisdiction to entertain collateral attacks upon state criminal convictions is not unlimited. The applicable statute, 28 U.S.C. ยง 2254, authorizes federal intervention only upon application of a person who is in custody pursuant to a state criminal sentence. This means that the applicant must either still be in prison, or be ...


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