MILBURN v. KERESTES et al

Filing 23

ORDER THAT PETITIONER'S OBJECTIONS TO R&R ARE OVERRULED. IT IS FURTHER ORDERED THAT MAGISTRATE JUDGE SITARSKI'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. IT IS FURTHER ORDERED THAT THE WITHIN HABEAS CORPUSE PETITION IS DISMISSED WI THOUT PREJUDICE FOR PETITIONER TO FILE A PETITION FOR HABEAS CORPUS AFTER HE HAS EXHAUSTED HIS STATE REMEDIES. IT IS FURTHER ORDERED THAT THE MOTION TO AMEND TO DELETE THE UNEXHAUSTED CLAIMS AND TO PROCEED WITH THE EXHAUSTED CLAIMS IS DISMISSED AS MO OT. IT IS FURTHER ORDERED THAT PETITIONER'S OBJECTION TO THE UNTIMELY RESPONSIVE PLEADING IS OVERRULED. IT IS FURTHER ORDERED THAT BECAUSE PETITIONER HAS NOT MET STATUTORY REQUIREMENTS TO HAVE HIS CASE HEARD, AND NO RESONABLE JURIST COULD FIND T HIS PROCEDURAL RULING DEBATABLE, AND BECAUSE PETITIONER FAILS TO DEMONSTRATE DENIAL OF A CONSTITUTIONAL RIGHT, A CERTIFICATE OF APPEALABILITY IS DENIED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS MATTER CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 9/25/2015. 9/25/2015 ENTERED AND COPIES MAILED TO PETITIONER AND E-MAILED.(lbs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RONALD MILBURN,

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Petitioner
vs.
JOHN KERESTES,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA, and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents

Civil Action
No. 14-cv-01696

O R D E R
NOW, this 25th day of September, 2015, upon
consideration of the following:
1)

Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody which
petition was filed by petitioner Ronald Milburn
pro se on March 20, 2014 (Document 1) (“Habeas
Corpus Petition”);

2)

Response to Petition for Writ of Habeas Corpus,
which response was filed June 17, 2014
(Document 9);

3)

Petitioner’s Traverse (Reply) to Respondents’
Response to Petition for Writ of Habeas Corpus
Pursuant to Habeas Corpus Rule 5(e), which reply
was filed June 27, 2014 (Document 12);

4)

Report and Recommendation of United States
Magistrate Judge Lynne A. Sitarski dated and
filed July 15, 2014 (Document 14) (“R&R”);

5)

Petitioner’s Objections to Magistrate Judge
Sitarski Report and Recommendation dated July 15,
2014 Denying Writ of Habeas Corpus, which
objections were filed July 25, 2014 (Document 16)
(“Objections to R&R”);

6)

Motion to Amend to Delete the Unexhausted Claims
and to Proceed with the Exhausted Claims, which
motion to amend was filed by petitioner pro se on
December 12, 2014 (Document 18);

7)

Response to Petitioner’s Request to Dismiss
Unexhausted Claims, which response was filed
February 6, 2015 (Document 19); and

8)

Objection to the Untimely Responsive Pleading,
which objection was filed February 25, 2015
(Document 20);

9)

Motion for Post Conviction Collateral Relief
filed by petitioner pro se in the Court of Common
Pleas of Philadelphia County, Pennsylvania as
Case No. CP-51-0002927-2007 on June 6, 2014, and
filed in the within federal action on
September 25, 2015 (Document 22) (“PCRA
Petition”);

it appearing that on March 20, 2014, petitioner filed his Habeas
Corpus Petition; it further appearing that petitioner filed his
PCRA Petition in the Court of Common Pleas of Philadelphia
County, Pennsylvania; it further appearing that United States
Magistrate Judge Lynne A. Sitarski issued her R&R on July 15,
2014, which recommended that petitioner’s Habeas Corpus Petition
be dismissed without prejudice for petitioner to file a habeas
corpus petition once his Pennsylvania Post Conviction Relief Act
proceedings are complete; it further appearing that petitioner’s
Motion to Amend to Delete the Unexhausted Claims and to Proceed
with the Exhausted Claims seeks withdrawal of all claims from
his Habeas Corpus Petition which have not been exhausted in the
PCRA proceeding; it further appearing, after de novo review of
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this matter, that Magistrate Judge Sitarski’s R&R correctly
determined the legal and factual issues presented in the
petition for habeas corpus relief;
IT IS FURTHER ORDERED that petitioner’s Objections to
R&R are overruled. 1
1

Petitioner makes three main objections to Magistrate Judge
Sitarski’s R&R, specifically that (1) the procedural history contains errors,
(2) he did not consent to a magistrate judge dismissing his petition, and
(3) he objects to the characterization in the discussion that he did not
present his federal claims before the state court.
Because petitioner’s first and third objections both object to
the recommendation that his case be dismissed without prejudice to file a
habeas corpus petition after completion of his PCRA proceedings, I discuss
both objections together. Petitioner’s objections center around the fact
that he filed his PCRA Petition and the within Habeas Corpus Petition to
preserve his claims, and argues that he presented his claims to the Court of
Common Pleas, the Superior Court, and the Supreme Court of Pennsylvania on
direct appeal and therefore, he argues, he fully exhausted his claims and
should be able to move forward with those claims in this federal habeas
corpus petition.
As Magistrate Judge Sitarski correctly indicated, “[a] district
court ordinarily cannot grant a petition for a writ of habeas corpus arising
from a petitioner's custody under a state court judgment unless the
petitioner first has exhausted his available remedies in state court.”
Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010). Available remedies are
said to be exhausted in state court where petitioner no longer has the “right
under the law of the State to raise, by any available procedure, the question
presented”. 28 U.S.C. § 2254.
Here, the Petition for Habeas Corpus asserts three grounds: One)
that his appellate counsel on direct appeal violated his rights by failing to
raise an ineffective assistance of counsel claim with regard to petitioner’s
trial attorney; Two) the trial court violated petitioner’s constitutional
rights when they conducted a trial in absentia without petitioner present;
and Three) petitioner’s constitutional rights were violated when the
Pennsylvania Supreme Court did not file certain pro se motions submitted by
petitioner.
On June 6, 2014, petitioner filed his PCRA Petition with the
Clerk of Court for the Court of Common Pleas of Philadelphia County. As
correctly observed by Judge Sitarski in her R&R, this PCRA Petition seeks, in
Grounds One and Two, the same relief that petitioner is seeking in Grounds
One and Two of the within Petition for Habeas Corpus. Accordingly, those
grounds are unexhausted. See Houck, 625 F.3d at 93. According to the
(Footnote 1 continued):

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IT IS ORDERED that Magistrate Judge Sitarski’s Report
and Recommendation is approved and adopted. 2

(Continuation of footnote 1):
Criminal Docket of Petitioner’s Philadelphia criminal action, his PCRA
Petition is still pending in the PCRA court. See Commonwealth v. Milburn,
No. CP-51-CR-0002927-2007 (C.C.P. Philadelphia) Criminal Docket available at
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-51CR-0002927-2007.
Furthermore, with regard to Ground Three of the within Petition
for Habeas Corpus (that the state court did not file petitioner’s motions),
after reviewing the state court record and the attached PCRA petition, it
does not appear that defendant has presented this claim in Ground Three to
the state court either on direct or collateral appeal, and accordingly, he
has not exhausted his available remedies in state court. Accordingly,
petitioner’s first and third objections are overruled.
With respect to petitioner’s second objection, that he did not
consent to the jurisdiction of a magistrate judge, petitioner’s objection is
without merit. In this instance I referred petitioner’s Petition for Habeas
Corpus to Magistrate Judge Sitarski for her to make a Report and
Recommendation on her evaluation of the petition. I have reviewed Magistrate
Judge Sitarski’s R&R and have reviewed de novo all aspects of the R&R to
which petitioner has filed an objection. Moreover, because petitioner has
objected to the overall recommendation of the R&R to dismiss his petition, I
have conducted a de novo determination of the entire matter as required by
Congress and made the ultimate decision regarding the Petition for Habeas
Corpus as a result of that de novo determination. See Raddatz, 447 U.S. 667,
100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Accordingly, petitioner’s objection
to a magistrate judge drafting a report and recommendation in this matter is
overruled.
2

The extent of review of a Magistrate Judge’s Report and
Recommendation is committed to the discretion of the district court.
Jozefick v. Shalala, 854 F.Supp. 342, 347 (M.D.Pa. 1994). However, the
district court must review de novo those portions of the Report and
Recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(c). The
court may “accept, reject, or modify, in whole or in part, the magistrate’s
findings or recommendations.” Brophy v. Halter, 153 F.Supp.2d 667, 669
(E.D.Pa. 2001) (Padova, J.); Rule 72.1(IV)(b) of the Rules of Civil Procedure
for the United States District Court for the Eastern District of
Pennsylvania.
Furthermore, district judges have wide latitude regarding how
they treat recommendations of the magistrate judge. See United States v.
Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Indeed, by
providing for a de novo determination, rather than a de novo hearing,
Congress intended to permit a district judge, in the exercise of the court’s
sound discretion, the option of placing whatever reliance the court chooses
to place on the magistrate judge’s proposed findings and conclusions. I may
(Footnote 2 continued):

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IT IS FURTHER ORDERED that the within Habeas Corpus
Petition is dismissed without prejudice for petitioner to file a
petition for habeas corpus after he has exhausted his state
remedies.
IT IS FURTHER ORDERED that the Motion to Amend to
Delete the Unexhausted Claims and to Proceed with the Exhausted
Claims is dismissed as moot. 3
IT IS FURTHER ORDERED that petitioner’s Objection to
the Untimely Responsive Pleading is overruled. 4

(Continuation of footnote 2):
accept, reject, or modify, in whole or in part, any of the findings or
recommendations made by the magistrate judge. Id.
Upon review of the Report and Recommendation, together with a de
novo review of the record in this action, I conclude that the Report and
Recommendation correctly determines the pertinent legal and factual issues
presented by petitioner. Accordingly, I approve and adopt Magistrate Judge
Sitarski’s Report and Recommendation.
3

As discussed above in footnote 1, because Grounds One through
Three to the within Petition for Habeas Corpus are all unexhausted, and
because this Order dismisses the Petition for Habeas Corpus in its entirety,
petitioner’s Motion to Amend to Delete the Unexhausted Claims and to Proceed
with the Exhausted Claims is dismissed as moot.
4

Although the Response to Petitioner’s Request to Dismiss
Unexhausted Claims was not filed within the time period for responding to
motions, the response is not in opposition to petitioner’s motion, but rather
explains that respondents take no position on whether petitioner should be
permitted to withdraw his unexhausted claims. Accordingly, the 14-day time
limit from Rule 7.1(c) of the Local Rules of Civil Procedure for the Eastern
District of Pennsylvania for filing a response in opposition does not apply
to the Response to Petitioner’s Request to Dismiss Unexhausted Claims.
Furthermore, although petitioner objects to the response as
untimely under Federal Rule of Civil Procedure 12(a)(1)(C), that subsection
applies only to replies to answers filed as responsive pleadings and does not
apply to responses to motions.

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IT IS FURTHER ORDERED that because petitioner has not
met statutory requirements to have his case heard, and no
reasonable jurist could find this procedural ruling debatable, and
because petitioner fails to demonstrate denial of a constitutional
right, a certificate of appealability is denied.

IT IS FURTHER ORDERED that the Clerk of Court shall
mark this matter closed for statistical purposes.

BY THE COURT:

/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge

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