Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parry v. Kerestes

United States District Court, W.D. Pennsylvania

May 6, 2014

THOMAS PARRY, Petitioner,
v.
SUPERINTENDENT KERESTES, et al., Respondents.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that, for the reasons stated in the Memorandum Opinion and Order of October 26, 2012, as supplemented by this Report and Recommendation, the Amended Petition for Writ of Habeas Corpus be granted to allow Petitioner to pursue his direct appeal rights nunc pro tunc. Further, because any discussion on his ineffective assistance of counsel claims would be premature, it is recommended that these claims be stayed pending conclusion of Petitioner's state court proceedings.

As will be further explained in this Report and Recommendation, the Memorandum Opinion and Order conditionally granted the Amended Petition to allow Petitioner to pursue his direct appeal rights nunc pro tunc. As a result, Petitioner currently has an appeal pending before the Pennsylvania Superior Court. To the extent Petitioner claims ineffectiveness of his trial counsel for failing to preserve his right to appeal, these claims are now moot. However, the Court is concerned about the effect, if any, the vacatur of the Memorandum Opinion and Order ("Memorandum Opinion") may have on Petitioner's direct appeal rights as the Memorandum Opinion has no force or effect. In an abundance of caution and in order to preserve Petitioner's direct appeal rights, this Court will address the Amended Petition as though no relief previously had been granted.

II. REPORT

A. Relevant Factual and Procedural History

The Memorandum Opinion entered by this Court on October 26, 2012 (ECF No. 22), provides a detailed description of the complicated and oft-times confusing factual and procedural history of this case. Because the Court writes primarily for the parties, who are familiar with the facts and proceedings in this case, the Court incorporates by reference the procedural history from the Memorandum Opinion and will not repeat same in this Report and Recommendation. The Court recites herein only those additional developments which have occurred since the Memorandum Opinion was filed.

1. Federal Habeas Proceedings

At the time Petitioner filed his pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, he was incarcerated at the State Correctional Institution at Mahanoy in Frackville, PA. Petitioner is currently on parole with his sentence scheduled to expire in April of 2015.

On October 26, 2012, this Court entered a Memorandum Opinion which addressed Petitioner's direct appeal-related claims and granted him a conditional writ of habeas corpus ordering that he must be released from custody unless his direct appeal rights were reinstated nunc pro tunc within sixty days (ECF No. 22). In sum, the Court found that Petitioner's trial counsel provided ineffective assistance of counsel by failing to ensure that Petitioner's direct appeal rights were protected. The Court stated that in light of ordering that Petitioner's direct appeal rights should be reinstated, the Court "need not address any of the remaining claims." Memo. Op. at 8.

On December 28, 2012, Petitioner, pro se, filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit regarding the Court's "abstention" from addressing his suppression-related claims (ECF No. 24) and also filed a Request for Certificate of Appealability on the issue of whether he was entitled to a new suppression hearing and a new trial (ECF No. 25).

On January 7, 2013, the Court of Appeals issued an Order remanding the matter for the sole purpose of either issuing a certificate of appealability or stating reasons why a certificate of appealability should not issue (ECF No. 30). On that same day, Petitioner filed in this Court a Motion to Withdraw Notice of Appeal (ECF No. 31), which was granted by this Court on January 8, 2013.

On January 14, 2013, the appellate court noted that because an appeal had been docketed, this Court had improvidently granted the motion to withdraw and therefore the Court's Order granting the motion to withdraw the appeal was a nullity. See Federal Rule of Appellate Procedure 42(a). However, in light of Petitioner's apparent intent to discontinue the appeal, the Court of Appeals advised that it would close the case unless Petitioner filed a statement expressing his desire to continue the appeal.

On January 28, 2013, Petitioner filed a statement in the Court of Appeals in which he expressed his desire to continue his appeal. Accordingly, the appeal remained pending. On May 20, 2013, the appellate court granted a Certificate of Appealability and directed the parties to brief the following five (5) issues:

(1) "whether appellant's pro se consent to the Magistrate Judge's jurisdiction under 28 U.S.C. § 636(C)1) is effective in light of his purported reservation of the right to appeal the Magistrate Judge's rulings to a District Judge (Dist. Ct. Docket No. 19) and his later filing of "objections" to the Magistrate Judge's ruling and, if not, the effect of the invalid consent on the Judge's and this Court's jurisdiction."

(2) "whether the Magistrate Judge erred in declining to reach appellant's claims in light of his apparent withdrawal of the claims on which the Magistrate Judge granted relief (Dist. Ct. Docket No. 13 at 9), the fact that success on appellant's suppression-related claims would have resulted in a different remedy (i.e., a new trial) than the Magistrate Judge afforded (i.e., nunc pro tunc direct appeal), and the fact that the brevity of appellant's sentence may prevent him from obtaining relief on these ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.