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Benjamin Wayne Merring v. Janine Donate

April 29, 2011

BENJAMIN WAYNE MERRING, PETITIONER
v.
JANINE DONATE, ET AL., :: RESPONDENTS



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Benjamin Wayne Merring ("Petitioner" or "Merring") initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition"). (Doc. 1.) At the time of filing, Merring was confined in the Lackawanna County Prison. A search for Merring on the VINELink website, which provides the custody status of inmates in the custody of Pennsylvania correctional facilities through Pennsylvania's automated victim notification system, PA SAVIN, reveals no results, and thus, it appears that, as of the date of this Memorandum, Merring is not confined in any institution in Pennsylvania.*fn1

Merring challenges his 2008 conviction in the Lackawanna County Court of Common Pleas of Fleeing or Attempting to Elude a Police Officer, a second degree misdemeanor, as well as the summary offenses of Driving an Unregistered Vehicle, Driving While Operating Privilege is Suspended or Revoked, Failure to Use the Safety Belt System, and Operating a Vehicle Without a Valid Inspection. (See Commonwealth of Pennsylvania v. Benjamin W. Merring, Docket No. CP-35-CR-0002721-2007.*fn2 ) He was sentenced on September 17, 2008 on the second degree misdemeanor offense to a sentence of three (3) to twenty-four (4) months, with the first three months to be served in prison, the next three (3) months to be served on house arrest, and the remaining eighteen (18) months to be served on probation. (Doc. 6, Respondents' Memorandum of Law, at 1.) As to the summary offenses, the judge imposed fines in varying amounts. (Id.)

Although Merring characterized the instant Petition as one seeking a "common law writ of habeas corpus," because he alleged that he was in custody in violation of the Constitution pursuant to a state court conviction, we construed the Petition as one filed under the provisions of 28 U.S.C. § 2254(a). (See Doc. 3.)

Merring filed two (2) previous petitions for writ of habeas corpus challenging his 2008 conviction. His first Petition, which was filed on October 16, 2008 while his direct appeal from his judgment of sentence was pending, was dismissed without prejudice by Memorandum and Order dated November 7, 2008 for failure to exhaust state court remedies. (See Merring v. Donate, Civil No. 4:08-CV-1903.) Merring filed his second petition for writ of habeas corpus on October 26, 2009. (See Merring v. Donate, Civil No. 4:09-CV-2070, Docs. 1, 10.) By Order entered on December 17, 2009, 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) (requiring district courts to provide notice to pro se habeas petitioners of the implications of 28 U.S.C. § 2244(b) before ruling on their petitions), we issued a formal notice to Merring that he either could have his petition ruled on as filed, or withdraw it and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Id., Doc. 4.) The Order instructed Merring to file his Notice of Election indicating his choice within forty-five (45) days from the date of the Order, and further instructed that, if Merring elected to withdraw his petition, but his notice of election was not accompanied by the new petition, the case would be closed. (Id.)

On December 30, 2009, the December 17 Order was returned in the mail with a notation indicating that Merring no longer was confined at the Lackawanna County Prison. (Id., Doc. 5.) He subsequently was located at the State Correctional Institution at Camp Hill, and thus, on January 4, 2010, the December 17 Order was re-mailed to Merring at that institution. On February 12, 2010, Merring filed a Motion requesting a sixty (60) day extension of time to file his Notice of Election. (Id., Doc. 6.) By Order dated February 17, 2010, the Motion was granted, and Merring was directed to file his Notice of Election within thirty (30) days. (Id., Doc. 7.)

On February 24, 2010, the Court received notification from Merring that his address had changed back to the Lackawanna County Prison. (Id., Doc. 8.) Because it was unclear whether Merring had received the Court's Order granting him an extension of time to file his Notice of Election, by Order dated February 25, 2010, which was mailed to Merring at the Lackawanna County Prison, he was directed to file his Notice of Election on or before March 29, 2010. (Id., Doc. 9.)

On March 24, 2010, Merring filed his Notice of Election. (Id., Doc. 10.) Although he indicated in his Notice that he elected to withdraw his petition and would file a new petition on the same day, the new petition did not accompany his notice of election, and therefore, in accordance with the provision in our December 17, 2009 Order explaining that if the new petition did not accompany the Notice of Election, the case would be dismissed, that action was dismissed on March 25, 2010. (Id., Docs. 11, 12.)

The instant Petition is dated March 24, 2010, and Merring verifies on the last page that his Petition was hand delivered to the Clerk of Court on that date. (See Doc. 1 at 18.) Because Merring already was given the notice required by Miller, 197 F.3d 644 (3d Cir. 1999), and Mason, 208 F.3d 414 (3d Cir. 2000) in his previously filed action, and he indicated at the outset of the instant Petition that it is his "revised all-inclusive" petition (see Doc. 1 at 2), by Order dated April 19, 2010, we directed service of the Petition on Respondents. (See Doc. 3.) Respondents were directed to answer the Petition within twenty-one (21) days, and Petitioner was given the opportunity to file a reply brief within fourteen (14) days of receipt of Respondents' filings. (See id.)

On May 6, 2010, a Response to the Petition was filed on behalf of Respondents by the Office of the District Attorney of Lackawanna County. (See Docs. 5, 6.) On June 2, 2010, approximately thirteen (13) days after his reply brief was due, Merring filed four (4) Motions with the Court requesting the following: (1) the correction of the record to show his updated address (Doc. 9); (2) an extension of time to file a reply brief (Doc. 8); (3) a hearing on the validity of reclassifying the Petition as one filed under the provisions of 28 U.S.C. § 2254 (Doc. 7); and (4) injunctive relief in the form of an Order directing the administrators of the Lackawanna County House Arrest Program to allow him to leave house arrest in order to go to the Lackawanna County Courthouse Law Library, and directing Lackawanna County to provide him with transcripts of all of his "special visitations" to the Courthouse (Doc. 10).

By Memorandum and Order dated June 10, 2010, we denied as moot Merring's Motion requesting the correction of the record to reflect his residential address inasmuch as the docket already had been updated to reflect that address; we granted Merring's request for an extension of time until June 23, 2010 to file his reply; we denied Merring's request for a hearing on the issue of our classification of his Petition as one filed under the provisions of 28 U.S.C. § 2254; and we denied Merring's request for injunctive relief. (Doc. 13.)

Merring timely filed his Reply (Doc. 14) and various exhibits (Docs. 14-2 through 14-29) on June 23, 2010. Accordingly, the Petition is ...


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