BALLARD v. WENEROWICZ et al

Filing 9

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED; PETITIONER'S REQUEST FOR SUBPOENAS IS DENIED AND ANY SUBPOENAS THAT MAY HAVE ISSUED ARE QUASHED; JUDGE HEY'S REPORT AND RECOMMENDATIONS ARE APPROVED AND ADOPTED; THE CLERK OF COURT SHA LL TRANSFER THIS CASE FROM OUR DOCKET TO THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF PA; AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY.. SIGNED BY HONORABLE STEWART DALZELL ON 9/25/14. 9/25/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TODD DARRELL BALLARD

CIVIL ACTION

v.
MICHAEL WENEROWICZ, et al.

NO. 14-4815
ORDER

AND NOW, this 25th day of September, 2014, upon consideration of petitioner
Ballard's prose petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry#
1), our September 2, 2014 Order referring this matter to the Honorable Elizabeth T. Hey for a
Report and Recommendation pursuant to Local Rule Civ. P. 72.1 and 28 U.S.C. §636(b)(l)(B),
and Judge Hey's September 4, 2014 Report and Recommendation ("R&R") to which petitioner
timely filed objections, and the Court finding that:
(a)

Petitioner, currently incarcerated at SCI-Graterford in Montgomery

County in this District, challenges his conviction in the Court of Common Pleas of Allegheny
County in the Western District of Pennsylvania, R&R at 1-2;
(b)

Judge Hey, in her Report, cites the jurisdictional provision of 28 U .S.C.

§2241, which provides that a prisoner in state custody may file a petition in the federal court for
the district where he is in custody or within which he was convicted and sentenced, and
concludes that we should transfer the case to the Western District of Pennsylvania, id. at 1;
(c)

Section 224l(d) further provides, "The district court for the district

wherein such an application is filed in the exercise of its discretion and in furtherance of justice
may transfer the application to the other district court for hearing and determination":
(d)

Judge Hey recommends that we transfer this matter to the Western District

because Ballard challenges the trial court's rulings and the prosecutor's actions, and claims his

ENTERED
SEP 2 5 2014
CLERK OF r.Ol IRT

trial and appellate counsel were ineffective -- and as the trial-court records and the District
Attorney who prosecuted the case are located in the Western District, it is in the interest of
justice to transfer this petition there, id. at 2;
(e)

She also recommends quashing Ballard's five subpoena requests, id. at 3;

(f)

Ballard contests Judge Hey's conclusions on two grounds: first, he states

that it is not in the interest of justice to transfer his habeas petition because he is challenging a
state court sitting in the Western District; and, second, he objects to Judge Hey's statement that
he filed five subpoenas when in fact he filed twenty-three subpoenas, which he asserts are
necessary to expand the evidentiary record in anticipation of an evidentiary hearing, Obj. at 1, 7;
(g)

Pursuant to 28 U.S.C. § 636, we must "make a de novo determination of

those portions of the report or specified proposed findings or recommendations to which"
petitioner objects;
(h)

Ballard states that he seeks relief in the Eastern District of Pennsylvania

because he is "challenging the illegal conviction and sentence by the trial judge and fact-finder··
in his non-jury trial, Obj. at 2, and expands on his objection to Judge Hey's recommended
transfer to rehearse the complaints in his habeas petition;
(i)

Ballard complains about the trial judge's conduct, the testimony of

prosecution witnesses, and the dismissal of his appeal and Post Conviction Relief Act
proceeding, but he fails to explain why these alleged errors in the state court system could not be
entertained by our sister court in the Western District;

G)

Indeed, the United States District Courts for Pennsylvania's three federal

judicial districts have routinely transferred petitions of this type to the district of conviction for
substantive habeas proceedings,

see,~.

Helfrich v. Coleman, 2010 WL 1337728 (E.D.Pa. Apr.
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6, 2010) (Reed Jr., J.); McKeever v. McGrady, 2008 WL 5101729 (E.D.Pa. Nov. 26, 2008)
(Diamond, J. );
(k)

Our Court of Appeals has "note[ d] that it is quite clear that ordinarily a

transfer of a [habeas] proceeding relating to the validity of the petitioner's conviction from the
district of confinement to the district of sentencing would be in furtherance of the convenience of
the parties and witnesses," see In re Nwanze, 242 F.3d 521, 526 n.2 (3d Cir. 2001) (internal
citations omitted);
(1)

And as our colleagues have observed. "this practice is permitted by

statute, is commonplace, is endorsed by the court of appeals, achieves a desirable uniformity of
approach among the three districts in the matter of exercising jurisdiction in these cases, and
serves the interests of the litigants in those cases where hearings are required," Daniels v.
Mahally, 2014 WL4187517 at *2 (M.D.Pa. Aug. 21, 2014), and seems especially warranted
where, as here, the petitioner seeks to raise a wide range of issues;
(m)

In his petition, Ballard also requested counsel, discovery, and an

evidentiary hearing in addition to the subpoenas he sought, R&R at 3; and
(n)

We agree with Judge Hey that the Western District is best able to evaluate

all of Ballard's discovery requests, and will therefore quash any subpoenas that may have issued
with the filing of his petition in this Court;

It is therefore ORDERED that:
1.

Petitioner's objections are OVERRULED;

2.

Petitioner's request for subpoenas is DENIED and any subpoenas that may

have issued ARE QUASHED;

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3.

Judge Hey's Report and Recommendation are APPROVED and

4.

The Clerk of Court shall TRANSFER this case from our docket to the

ADOPTED;

United States District Court for the Western District of Pennsylvania; and
5.

The Clerk of Court shall CLOSE this action statistically.
BY THE COURT:

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