EDE v. SAUERS et al

Filing 24

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED AND DENIED. THE CLERK SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE WILLIAM H. YOHN, JR ON 7/25/11. 7/25/11 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFREY ALAN EDE
vs.
DEBRA K. SAUERS
SUPERINTENDENT, SCI-FORREST,
ET AL.

: CIVIL ACTION
:
:
:
:
:
: NO. 10cv6824
ORDER

AND NOW, this 25th day of July, 2011, upon careful and independent consideration
of the petition for writ of habeas corpus, the documents submitted by the petitioner, the response of
the respondents and after review of the Report and Recommendation of United States Magistrate
Judge Jacob P. Hart, and consideration of petitioner’s objections to the Report and Recommendation,
IT IS HEREBY ORDERED that:
1. The petitioner’s objections are OVERRULED.
2. The Report and Recommendation is APPROVED and ADOPTED.
3. The petition for writ of habeas corpus is DISMISSED and DENIED.1
1

Petitioner raises two issues. He first contends that the Commonwealth filed an untimely
petition for allocatur with the Pennsylvania Supreme Court, which refused to accept his motions
challenging the timeliness of the Commonwealth’s petition.
A review of the documents submitted by petitioner discloses that petitioner is factually
incorrect. Petitioner initially filed a motion raising the timeliness issue on November 17, 2008.
On November 19, 2008, the Office of the Prothonotary of the Supreme Court advised petitioner
that his motion would not be considered because the issue of the timeliness of the
Commonwealth’s petition should have been raised in his brief in response to that petition filed
August 18, 2008 and the Pennsylvania Rules of Appellate Procedure did not provide for a
separate motion to dismiss. By letter dated January 8, 2009, the Prothonotary of the Supreme
Court advised petitioner that he needed to file an application for permission to file his previously
returned motion alleging untimely filing of the Commonwealth’s petition for allocatur. The
petitioner did then file a petition with the Supreme Court for permission to file a motion raising
the timeliness issue on January 23, 2009. The Supreme Court denied this petition on March 26,
2009. Thus, the Supreme Court did consider his petition for permission to file a motion raising
the timeliness issue and rejected it. On that same date, it also granted the Commonwealth’s
petition for allocatur, vacated the opinion of the Superior Court and remanded the case to
reinstate the original sentence of the trial court, to which the petitioner objected. This was a “per
curiam” order the meaning of which is apparently misunderstood by the petitioner. Such an
order is by the court as a whole. See Black’s Law Dictionary. It is not an order by the

4. The petitioner having failed to make a substantial showing of the denial of a
Constitutional right, there is no ground to issue a certificate of appealability.
5. The clerk shall close this case statistically.

s/William H. Yohn Jr.
William H. Yohn Jr., Judge

Prothonotary or any of the Prothonotary’s clerks. It is not necessary for one or more of the
justices to actually sign the order.
Petitioner’s second claim is that he was denied access to the Supreme Court by the
Prothonotary and clerks of that court. He alleges that the Prothonotary returned his motions
unfiled in violation of the Pennsylvania Rules of Procedure. Petitioner filed a letter on April 17,
2009. By letter dated April 20, 2009, the Prothonotary of the Supreme Court advised petitioner
that the reconsideration/reargument period had expired. Petitioner then filed an application for
extraordinary relief on May 1, 2009. It was returned by the Prothonotary of the Supreme Court
on May 5, 2009 because the decision of the Supreme Court resolving the case had been issued on
March 26, 2009 and the time for reconsideration had expired so that the application was
untimely. Thus, he was not denied access to the Supreme Court, but was required to follow the
rules of that court.
In addition to being without merit factually, petitioner’s claims fail because they allege
violations of state law. A federal court has jurisdiction to entertain an application for habeas
relief “only on the ground that [a petitioner] is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). A federal habeas court may not consider a
prisoner’s claim of state law violations, but must limit its review to issues of federal law. It is
not the province of a federal court to re-examine a state court’s determination of state law.
To the extent that the petitioner is alleging a due process violation under the Constitution,
he has not exhausted his claim and is now procedurally defaulted. A state prisoner may obtain
federal habeas review of his conviction only after exhausting the remedies available in state
court. 28 U.S.C. § 2254(b)(1)(A). The petitioner must establish that his claims were fairly
presented to the state courts in the first instance. Petitioner has never presented his claims of a
due process violation by way of governmental interference with his right to appellate review in
any state court. It is thus unexhausted and now procedurally defaulted.