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Raul Marquez v. Commonwealth of Pennsylvania

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


January 23, 2012

RAUL MARQUEZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA,
RESPONDENT

The opinion of the court was delivered by: Judge Joy Flowers Conti

Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER

Raul Marquez, ("Petitioner") filed what he entitled as a "Petition for Habeas Corpus in Abeyance" (the "Petition"). ECF No. 1. He originally filed the Petition in the United States District Court for the Middle District, which transferred the case to this District, ECF No. 5, because Petitioner was at the time of filing the Petition, incarcerated in the State Correctional Institution at Greene ("SCI-Greene"), which is located in Waynesburg, Pennsylvania, Greene County, which is within the territorial boundaries of the United States District Court for the Western District of Pennsylvania. 28 U.S.C. ' 118(c).

Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Report and Recommendation of Magistrate Judge Kelly recommended that the Petition be dismissed pre-service because it failed to state a claim cognizable in habeas, namely, complaining about the failure of the Court of Common Pleas of Berks County to appoint counsel for Petitioner who sought to file a petition for writ of certiorari in the United States Supreme Court from the Pennsylvania Supreme Court's denial of his allocatur petition in the Petitioner's Post Conviction Relief Act ("PCRA") proceedings. ECF No. 6. After being granted an extension of time, Petitioner filed a Response in the nature of Objections to the Report and Recommendation dated November 3, 2011 ("Objections"), ECF No. 9 and a Motion in the Nature of a Petition to Stay and Abey, ECF No. 10.

Petitioner's Objections are not entirely clear. However, he appears to raise new claims in the Objections which were not made in the Petition. See, e.g., ECF No. 9 at p. 2 ("now Petitioner does realize that he's [sic] cognizable claim to be cognizable under Habeas Corpus Writ . . . should be for example: How the Commonwealth [convicted Petitioner] using Non-enacted and non-Ratified Code, Status [sic] and Laws. . . ."). Petitioner further included a heading entitled "Amendment Clause" and thereunder stated: "Petitioner hereby do [sic] attempt and request the acceptance of the Amend [sic] of Petition for Habeas Corpus. . ." Id. We conclude that Petitioner is now attempting to amend his Petition. Because, as the Report correctly noted, Petitioner's conviction arose out of the Court of Common Pleas of Berks County which is located within the territorial boundaries of the United States District Court for the Eastern District of Pennsylvania ("the Eastern District Court") and because there are potentially Anti-Terrorism and Effective Death Penalty Act ("AEDPA") statute of limitations concerns if the Court were to dismiss the Petition outright given Petitioner's apparent desire to amend, and in view of Petitioner's request that this case be stayed and abeyed, apparently due to concerns about the AEDPA statute of limitations, ECF No. 10 at 2 (last paragraph), the Court determines that the best course of action would be to transfer this case to the Eastern District, wherein Petitioner's conviction was obtained, in accordance with the practice of the United States District Courts located in Pennsylvania,*fn1 and allow the Eastern District Court to address Petitioner's request for leave to amend his Petition as contained in Petitioner's objections.

Accordingly, after de novo review of the Report and the Objections thereto and all of the pleadings in the case, it is hereby ORDERED that the Report is adopted to the extent that it dismisses the Petition for failure to state a claim cognizable in habeas, albeit the dismissal is without prejudice to Petitioner seeking leave to amend his Petition in the United States District Court for the Eastern District of Pennsylvania to where we hereby ORDER the Clerk of this Court to transfer this case forthwith in order for that Court to address in the first instance Petitioner's request for leave to amend his Petition.

Joy Flowers Conti U.S. District Judge

cc: The Honorable Maureen Kelly

United States Magistrate Judge RAUL MARQUEZ HN3283 SCI-Greene 175 Progress Drive Waynesburg, PA 15370


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