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Joseph Mcdermott

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


April 23, 2013

JOSEPH MCDERMOTT,
PETITIONER,
v.
:
SUPERINTENDENT PICKINS, : ET AL., RESPONDENTS.

The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Petitioner, Joseph McDermott, filed a habeas petition on November 28, 2011. On October 15, 2012, Magistrate Judge Arnold C. Rapoport issued a Report and Recommendation, which I approved and adopted on January 18, 2013. Petitioner then filed a motion for reconsideration and to verify case law. For the reasons state below, I will deny the motions.

I. Procedural History

The Pennsylvania Superior Court issued an opinion in petitioner's reinstated direct appeal on December 31, 2012. The Superior Court affirmed the convictions but vacated petitioner's judgments of sentence, finding the length unreasonable and excessive, and remanded for resentencing. The Superior Court also denied petitioner's PCRA appeal, without prejudice to his filing a timely PCRA within one year of his direct appeal becoming final thereby dismissing without prejudice the only claim stated in the federal habeas petition.

On January 17, 2013, I dismissed the case without prejudice. Thirteen days later, petitioner filed a motion for reconsideration (Doc. No. 25) and a correction (Doc. No. 26) and then filed a notice of appeal to the United States Court of Appeals for the Third Circuit (Doc. No. 27). On March 6, 2013, the Third Circuit stayed the appeal pending resolution of the motion for reconsideration.

Petitioner's re-sentencing is scheduled for June 12, 2013 and there is a pending motion to recuse the trial judge scheduled to sentence petitioner. *fn1

II. Discussion

Petitioner's motion for reconsideration and motion for the acceptance by this court of case law verifications do not contain relevant argument or relevant legal support for any of petitioner's arguments. *fn2 Petitioner refers to cases involving 42 U.S.C. § 1983 and zoning disputes, which are not applicable in his federal habeas appeal. *fn3 Additionally, petitioner discusses his need for leave to amend and discusses his proposed amendment. However, there is nothing on the docket concerning an amendment. Even if petitioner seeks leave to amend his habeas petition, such leave is denied for the reasons that petitioner has not exhausted his state remedies. Finally, petitioner's motion in the Third Circuit does not contain any pertinent citations either.

This is a federal habeas case reviewing a state-court conviction under 28 U.S.C. § 2254. Petitioner's objections were denied because he had not exhausted his state court remedies due to the determination that he should be resentenced. Further, all petitioner's arguments of illegality on behalf of the state and federal courts are denied. After resentencing, another direct appeal may be taken from the new sentence within the state appellate court system. Once that appeal becomes final, or if no appeal is taken by the deadline, petitioner will then have one year to file a PCRA petition under the PCRA's jurisdictional time-bar statute. If petitioner then files a federal habeas petition per 28 U.S.C. § 2244, those claims that he has properly exhausted on direct appeal and on the PCRA appeal will be considered. *fn4

III. Conclusion

For the reasons stated above, the petitioner's motion for reconsideration and motion for the acceptance by this court of case law verifications are denied.

An appropriate Order follows.


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