SIMMONS v. COMMONWEALTH OF PENNSYLVANIA

Filing 9

ORDER THAT SIMMONS' OBJECTIONS (DOC. NO. 8) ARE OVERRULED; THE REPORT AND RECOMMENDATION (DOC. NO. 6) IS APPROVED AND ADOPTED; SIMMONS' PETITION FOR A WRIT OF HABEAS CORPUS (DOC. NO. 3) IS DENIED WITH PREJUDICE; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY; AND THE CLERK OF COURT SHALL MARK THIS CLOSED.. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 12/20/16. 12/21/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (pr, ) Modified on 12/21/2016 (pr, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN SIMMONS
a/k/a MARK THOMAS
v.

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CIVIL ACTION
No. 16-3773

MARK GARMAN, et al.
ORDER
AND NOW, this 20th day of December, 2016, upon careful and independent
consideration of Petitioner John Simmons’s pro se Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody, and after review of the Report and
Recommendation of United States Magistrate Judge Timothy R. Rice and Simmons’s objections
thereto, it is ORDERED:
1. Simmons’s objections (Document 8) are OVERRULED 1;

1

In his habeas petition, Simmons raises two claims: (1) the Commonwealth misrepresented the
existence of certain witnesses in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (2)
trial counsel was ineffective for misstating the immigration consequences of his guilty plea. He
also asserts his petition is timely based on United States v. Chan, 792 F.3d 1151 (9th Cir. 2015).
On November 15, 2016, Judge Rice issued a Report and Recommendation, recommending
Simmons’s petition be dismissed as untimely. Simmons filed objections to the Report and
Recommendation, arguing Judge Rice erred by characterizing his petition as a § 2254 petition
without affording him proper notice and by finding his petition untimely. After independent
consideration of Simmons’s arguments, the Court agrees with Judge Rice’s conclusion, but will
address Simmons’s objections.
Simmons contends Judge Rice erred by characterizing his petition—which Simmons
asserts seeks relief pursuant to § 2255—as a § 2254 petition, without first apprising him of the
consequences of that conversion, as required under United States v. Miller, 197 F.3d 652 (3d Cir.
1999) and Mason v. Myers, 208 F.3d 414, 418-19 (3d Cir. 2000). However, Miller and Mason
are inapplicable, as those cases held that, because of the Antiterrorism and Effective Death
Penalty Act’s restrictions on the filing of second or successive § 2254 and § 2255 petitions,
district courts must “provide certain prophylactic ‘notice’ measures before . . . re-characterizing a
post-conviction motion.” Mason, 208 F.3d at 418. Here, Simmons originally filed for relief
under § 2255, which is available only to individuals in federal custody. The Court therefore
instructed the Clerk of Court to provide to Simmons a standard form for relief under § 2254,
which he completed and returned. Thus, the Court did not recharacterize Simmons’s petition,
but merely instructed him to file the proper petition, which he did.

2. The Report and Recommendation (Document 6) is APPROVED and ADOPTED;
3. Simmons’s Petition for a Writ of Habeas Corpus (Document 3) is DENIED with
prejudice;
4. There is no probable cause to issue a certificate of appealability; and
5. The Clerk of Court shall mark this case CLOSED.
BY THE COURT:

/s/ Juan R. Sánchez.
Juan R. Sánchez, J.

Simmons further requests that the Court construe his petition as a § 2241 petition because
his “case presents exceptional circumstances.” Pet’r’s Objs. 7. However, like relief under
§ 2255, relief under § 2241 is available only to federal prisoners. See 28 U.S.C. § 2241(c);
McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010) (noting § 2241 “confers habeas jurisdiction
to hear the petition of a federal prisoner who is challenging not the validity but the execution of
his sentence” (internal quotation marks and citation omitted)).
Simmons also reasserts his argument that his petition is timely under Chan. However, as
noted by Judge Rice, Chan does not render Simmons’s petition timely, as it was decided by the
Ninth Circuit Court, not the United States Supreme Court. See 28 § 2244(d)(1)(C) (allowing a
court to apply an alternative start date in calculating AEDPA’s one-year limitations period if a
petitioner establishes the asserted constitutional “right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review”).
The Court adopts the Report and Recommendation in full, and Simmons’s petition is
therefore dismissed as untimely.
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