Montero v. Kauffman et al

Filing 3

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Malachy E Mannion on 4/28/21. (ep)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KELVIN MONTERO,

:

Petitioner

: CIVIL ACTION NO. 3:21-0725

v.

:

KEVIN KAUFFMAN, SUPT.,
Respondent

(Judge Mannion)

:
:

MEMORANDUM
I.

Background
Petitioner, Kelvin Montero, an inmate confined at the State

Correctional Institution, Huntingdon, Pennsylvania, filed the instant petition
for writ of habeas corpus pursuant to 28 U.S.C. §2254. He challenges his
conviction and sentence imposed by the Philadelphia Court of Common
Pleas. (Doc. 1.) The filing fee has been paid. For the reasons outlined below,
the petition will be transferred to the United States District Court for the
Eastern District of Pennsylvania.

II.

Discussion
In states with two or more federal judicial districts, a state prisoner may

file a habeas petition in one of two federal district courts: (1) the federal

judicial district where the prisoner is in custody; or (2) the federal judicial
district where the state court of conviction is located. 28 U.S.C. §2241(d).
Each of those districts have “jurisdiction to entertain the petition.” Id. Section
2241(d), however, also provides that a district court “in the exercise of its
discretion and in furtherance of justice,” may transfer a petitioner’s §2254
petition to “the district court for the district within which the State court was
held which convicted and sentenced [the petitioner].” 28 U.S.C. §2241(d).
Additionally, 28 U.S.C. §1404 vests a district court with the authority to
transfer any civil action, “for the convenience of the parties and witnesses, in
the interest of justice,” to any district where the action might have been
brought. 28 U.S.C. §1404(a). 1
Since the amendment of that section, it has been the agreed practice
of the United States District Courts for the Eastern, Middle and Western
Districts of Pennsylvania, to transfer any habeas petitions filed by a petitioner
incarcerated in their respective districts to the district which includes the
county where the conviction was had. Petitioner is attacking the legality of a
conviction and sentence which were entered in the Court of Common Pleas

Because habeas proceedings are generally considered civil in nature,
Hilton v. Braunskill, 481 U.S. 770, 776 (1987), the term “civil action” includes
habeas petitions. Parrott v Government of Virgin Islands, 230 F.3d 615, 683
(3d Cir. 2000).
1

2

of Philadelphia County, which is located within the jurisdiction of the United
States District Court for the Eastern District of Pennsylvania. Fletcher v.
Rozum, 2008 WL 2609826 * 2 (E.D. Pa. 2008). The state trial court, as well
as any records, counsel, and other witnesses, are located within the Eastern
District of Pennsylvania. As such, it would be prudent to transfer this action
to that court.
An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: April 28, 2021
21-0725-01

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