MACMULLIN v. SUPERINTENDENT OF SCI-BENNER TWP. et al

Filing 18

ORDERED THAT THE REPORT AND RECOMMENDATION IS ADOPTED IN PART AND REJECTED IN PART; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED WITHOUT PREJUDICE; THE MOTION FOR STAY AND ABEYANCE IS DENIED AND THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY; IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE PETRESE B. TUCKER ON 11/29/17. 11/30/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAYMOND MACMULLIN,

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Petitioner,
v.
SUPERINTENDENT OF
SCI-BENNER TWP., et al.,
Respondents.

CIVIL ACTION
NO. 15-1796

ORDER
AND NOW, this __29th__ day of November, 2017, upon careful consideration of the
“Protective” Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. 1),
Respondents’ Answer to Petition for Writ of Habeas Corpus (Doc. 11), Petitioner’s Motion for
Stay and Abeyance (Doc. 2), Respondents’ Answer to Motion for Stay and Abey of Protection
Petition for Writ of Habeas Corpus (Doc. 11-5), and the Report and Recommendation of United
States Magistrate Judge Henry S. Perkin (Doc. 15), IT IS HEREBY ORDERED AND
DECREED as follows:
1.

The Report and Recommendation is ADOPTED IN PART AND REJECTED
IN PART; 1

2.

The Petition for Writ of Habeas Corpus is DENIED WITHOUT PREJUDICE;

3.

The Motion for Stay and Abeyance is DENIED; and

4.

There is no probable cause to issue a certificate of appealability.

IT IS FURTHER ORDERED that the Clerk of Court shall mark this case as CLOSED
for statistical purposes.

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BY THE COURT:
/s/ Petrese B. Tucker
____________________________
Hon. Petrese B. Tucker, U.S.D.J.
1

The Report and Recommendation is adopted with respect to its conclusion that Petitioner
has not exhausted his state court remedies. It is well established that this Court may not entertain
a petition for habeas corpus until a petitioner has exhausted the remedies available in state court.
28 U.S.C. § 2254 (b)(1)(A). The Court agrees with Judge Perkins that the proper mechanism to
challenge an improperly calculated sentence is through a mandamus action filed against the
Department of Corrections in the Pennsylvania Commonwealth Court. Allen v. Com., Dep’t of
Corrections, 103 A.3d 365, 372 (Pa. Cmmw. Ct. 2014).
The Petitioner in this case has not alleged that he sought a Writ of Mandamus from the
Commonwealth Court, and there is no evidence that he did so. Petitioner may pursue the
exhaustion of his state court remedies in the Commonwealth Court by requesting that the
Department of Corrections redress his allegedly miscalculated sentence. Because Petitioner has
not yet exhausted this remedy, this Court may not entertain his Petition.
A stay and abeyance holding a federal habeas petition pending exhaustion of state
remedies may only be granted in limited circumstances. Rhines v. Weber, 544 U.S. 269, 277
(2005). “Because granting a stay effectively excuses a petitioner’s failure to present his claims
first to the state courts, stay and abeyance is only appropriate when the district court determines
there was good cause for the petitioner’s failure to exhaust his claims first in state court.” Id.
Petitioner fails to allege good cause for his failure to bring this claim before the Commonwealth
Court. Therefore, a stay in abeyance is inappropriate.
Although Judge Perkins addressed the merits of Petitioner’s claim, the Court declines to
adopt that portion of the Report and Recommendation. Allowing state courts the first
opportunity to decide state claims furthers the policies of comity and federalism. See Roman v.
DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012).
The Court takes judicial notice that Petitioner’s inmate number does not appear on the
Pennsylvania Inmate Locator. This supports the conclusion that he is no longer incarcerated in
the State Correctional Institution in Benner Township, Pennsylvania. The fact of Petitioner’s
release raises a mootness issue. However, the Court need not address this issue because the Court
has no habeas corpus jurisdiction by virtue of Petitioner’s failure to exhaust his state court
remedies.

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