Shover v. Brubaker

Filing 9

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 5/15/17. (ao)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD PAUL SHOVER, II,
Petitioner

:
:
:
v.
:
:
JESSICA E. BRUBAKER, JUDGE, :
Respondent
:

CIVIL NO. 3:17-CV-0518
(Judge Nealon)
(Magistrate Judge Saporito)

MEMORANDUM
Background
On March 27, 2017, Petitioner, Richard Paul Shover, II, an inmate currently
confined at the Cumberland County Prison in Carlisle, Pennsylvania, filed a pro se
petition for habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
On April 18, 2017, Magistrate Judge Saporito issued a Report and
Recommendation, construing the petition as a Section 2241 petition and
recommending that the petition be dismissed without prejudice for failure to
exhaust state remedies and for lack of extraordinary circumstances. (Doc. 7).
Neither party has filed objections. For the reasons discussed herein, the Report
and Recommendation will be adopted, and the petition will be dismissed without
prejudice.
Standard of Review
When neither party objects to a magistrate judge’s report and

recommendation, the district court is not statutorily required to review the report,
under de novo or any other standard. Thomas v. Arn, 474 U.S. 140, 152 (1985);
28 U.S.C. § 636(b)(1)(C). Nevertheless, the Third Circuit Court of Appeals has
held that it is better practice to afford some level of review to dispositive legal
issues raised by the report. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987), writ denied, 484 U.S. 837 (1987); Garcia v. I..N.S., 733 F. Supp. 1554,
1555 (M.D. Pa. 1990) (Kosik, J.) (stating “the district court need only review the
record for plain error or manifest injustice”). In the absence of objections, review
may properly be limited to ascertaining whether there is clear error that not only
affects the rights of the plaintiff, but also seriously affects the integrity, fairness, or
public reputation of judicial proceedings. Cruz v. Chater, 990 F. Supp. 375, 377
(M.D. Pa. 1998) (Vanaskie, J.). The district court may accept, reject, or modify, in
whole or in part, the findings and recommendations contained in the report. 28
U.S.C. § 636(b)(1)(C); M.D. Pa. L.R. 72.3.
Discussion
In the petition, Petitioner asserts that he “is being unlawfully held in custody
despite his express reservation of rights under Uniform Commercial Code Sections
1-308 and 1-103 and despite his not having entered into any contract or
commercial agreement that would grant jurisdiction to the state criminal court.”
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(Doc. 7, pp. 1-2). Petitioner also claims that the state court “refused to interact
with him at his preliminary hearing, speaking only to court-appointed defense
counsel, and that it has denied or refused to rule on his motion to proceed in
propria persona in defending against the criminal charges against him.” (Doc. 7,
p. 2).
In the Report and Recommendation, Magistrate Judge Saporito provides the
factual and procedural background of the case and the applicable standards of
review for a Section 2254 petition filed by a pretrial detainee and a Section 2241
petition, all of which are herein adopted. (Doc. 7, pp. 2-4). Ultimately, Magistrate
Judge Saporito liberally construes the petition as a Section 2241 petition, and
concludes the following:
While we have jurisdiction under § 2241 to entertain
[Petitioner]’s pretrial habeas corpus petition, it is clear that he
is not entitled to habeas relief at this time. To the extent that he
has raised any federal constitutional claims in his petition, he
has failed to exhaust them . . . [because Petitioner] has failed to
present his claims to either the Superior Court of Pennsylvania
or to the Supreme Court of Pennsylvania.
.......................................................................................................
We can then only consider [Petitioner]’s pre[-]trial habeas
petition if there are extraordinary circumstances. We find none
present here. The petition hints at an argument that pre-trial
federal interference by way of habeas corpus may be justified
because jurisdiction is lacking for the state to bring any
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criminal charges against [Petitioner] . . . [b]ut [Petitioner]’s
jurisdictional theory amounts to nothing more than spurious
‘redemptionist’ or ‘sovereign citizen’ arguments that are
patently frivolous.
(Doc. 7, pp. 4-5). Ultimately, the Magistrate Judge recommends that, for the
reasons discussed, the petition be dismissed without prejudice due to failure to
exhaust his state court remedies and failure to present extraordinary
circumstances. (Doc. 7, p. 5).
After review, and in the absence of objections, because there is no clear
error with Magistrate Judge Saporito’s Report and Recommendation, it will be
adopted as such, and the petition, (Doc. 1), will be dismissed without prejudice.
A separate Order will be issued.

Date: May 15, 2017
/s/ William J. Nealon
United States District Judge

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