CRESPO v. COMMONWEALTH OF PENNSYLVANIA

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE DAVID R. STRAWBRIDGE. THE PETITION FOR A WRIT OF HABEAS CORPUS IS DISMISSED. THE DISMISSAL IS WITH PREJUDICE AS TO PETITIONER'S REQUEST TO COMMENCE TRIAL BECAUSE THAT REQUEST IS NOW MOOT RATHER THAN MERELY PREMATURE. A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE, AND THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 9/25/15. 9/29/15 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAFAEL CRESPO,
Petitioner,
v.

CIVIL ACTION
NO. 14-6039

COMMONWEALTH OF PENNSYLVANIA and
THE DISTRICT ATTORNEY OF
PHILADELPHIA,
Respondents.
ORDER
AND NOW, this 25TH day of September, 2015, upon careful and independent
consideration of the petition for a writ of habeas corpus, the notice to amend, the
response, Petitioner’s reply to the response, and available state court records, and after
review of the Report and Recommendation of United States Magistrate Judge David R.
Strawbridge, it is hereby ORDERED as follows:
1. The Report and Recommendation, which explains that Petitioner has not
exhausted state court remedies, is APPROVED AND ADOPTED insofar
as its reasoning and conclusion were rightly stated at the time of its filing
and it remains correct with the addition noted below.
2. Upon review of the state court docket, the Court notes that subsequent to
the filing of the Report and Recommendation, Petitioner’s trial was
conducted, with testimony beginning on September 3, 2015; after some
brief continuances, the trial concluded on September 10, 2015. Petitioner
was found guilty of all charges and is now awaiting sentencing.
Petitioner’s claims concern his speedy trial rights under the Pennsylvania
Rules of Criminal Procedure, the Pennsylvania Constitution, the Sixth

Amendment to the United States Constitution, and the Interstate
Agreement on Detainers. He seeks dismissal of the charges or
“a trial to commence soon” (Pet’r Br. at 3). Because trial has now
occurred, the request to commence trial is moot.
3. The petition for a writ of habeas corpus is DISMISSED. The dismissal is
with prejudice as to Petitioner’s request to commence trial because that
request is now moot rather than merely premature. The dismissal is
without prejudice as to Petitioner’s claim that the charges should have
been dismissed or that his conviction should now be vacated due to
violation of his speedy trial rights; Petitioner could refile such a claim if
he first exhausts state remedies.
4. A certificate of appealability SHALL NOT ISSUE, in that the Petitioner
has not demonstrated that a reasonable jurist would debate the correctness
of this procedural ruling. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 484 (2000).
5. The Clerk of Court shall mark this case CLOSED for statistical purposes.

BY THE COURT:

/s/ Jeffrey L. Schmehl
Jeffrey L. Schmehl, J.

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