HARVEY v. KERESTES et al

Filing 3

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE L. FELIPE RESTREPO ON 9/9/15. 9/10/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEANE R. HARVEY
v.
JOHN W. KERESTES, et al.

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CIVIL ACTION

NO. 15-4818

MEMORANDUM
RESTREPO , J.

SEPTEMBER 9, 2015

Petitioner, Deane R. Harvey, has filed a pro se Petition for Writ of Habeas Corpus under
28 U.S.C. § 2254. Petitioner is incarcerated at the State Correctional Institution in Frackville,
Pennsylvania (“SCI-Mahanoy”). See Hab. Pet. 1.
Title 28 U.S.C. § 2241(d) provides in pertinent part:
Where an application for a writ of habeas corpus is made by a
person in custody under the judgment and sentence of a State court of
a State which contains two or more federal judicial districts, the
application may be filed in the district court for the district wherein
such person is in custody or in the district court for the district within
which the State court was held which convicted and sentenced him
and each of such district courts shall have concurrent jurisdiction to
entertain the application.
Thus, a habeas petition may be filed in either the district of confinement or the district of
conviction. See Gellock v. Freeman, 1987 WL 7208, *1 (E.D. Pa. 1987).
Here, the habeas petition challenges a conviction and sentence imposed in the
Court of Common Pleas of Monroe County, Pennsylvania,1 which is located in the Middle

1. Petitioner states that he pled guilty, was convicted of “Arson - Danger of Death or Bodily
Injury” on Sept. 4, 2002, and he was sentenced on Dec. 13, 2002 to 15 to 40 years in prison. See
Hab. Pet. ¶¶ 1-6.

District of Pennsylvania, see 28 U.S.C. § 118(b) (identifying the counties that make up the
Middle District, including Monroe County). Furthermore, petitioner is incarcerated at SCIMahanoy, which is also located in the Middle District of Pennsylvania, see Nation of Islam v. Pa.
Dept. Of Corrections, 2012 WL 529546, *1 (W.D. Pa. Feb. 1, 2012) (observing that SCIMahanoy is located within the territorial limits of the Middle District), adopted by, 2012 WL
529238 (W.D. Pa. Feb. 17, 2012). Since petitioner was neither convicted in nor is he
incarcerated in the Eastern District of Pennsylvania,2 petitioner improperly filed his petition in
this Court. See Oliverio v. Mazurkiewicz, 1986 WL 10667, *1 (E.D. Pa. 1986).
Where a petitioner fails to file a habeas petition in the proper federal district court,
the Court may, in the interest of justice, transfer the petition to a district which has jurisdiction
over the petition. See id. Here, since the Middle District of Pennsylvania is the district of
conviction and confinement, that is where petitioner should have filed his petition, pursuant to 28
U.S.C. § 2241(d). Accordingly, because petitioner is proceeding pro se and in order to avoid the
delay that would be caused by dismissal of the petition, the petition is transferred in the interest
of justice to the United States District Court for the Middle District of Pennsylvania, pursuant to
28 U.S.C. § 1404(a).3 See, e.g, Silfies v. Oelbalso, 2014 WL 7355038, *1-2 (M.D. Pa. Dec. 19,
2014) (transferring habeas petition, pursuant to § 1404(a), to the District of conviction).
An appropriate Order follows.

2. The Eastern District comprises the counties of Berks, Bucks, Chester, Delaware, Lancaster,
Lehigh, Montgomery, Northampton, and Philadelphia. 28 U.S.C. § 118(a).
3. Section 1404(a) of Title 28 grants district courts discretion to transfer cases, “in the interest of
justice,” to a district where the case might have been brought. See 28 U.S.C. § 1404(a).
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