Kunkle v. Commonwealth et al

Filing 5

ORDER: IT IS HEREBY ORDERED that: Petitioner shall within forty-five (45) days of the date of this Order complete and file with the Court the attached Notice of Election. Failure of Petitioner to comply with this Order will result in this Court ruling on the motion, document or pleading as captioned. Signed by Honorable Matthew W. Brann on 6/2/2017. (jn)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CHERYL A. KUNKLE, Petitioner, v. JOSH SHAPIRO, ET AL., Respondents. : : : : : : : : : No.: 4:17-CV-898 (Judge Brann) ORDER JUNE 2, 2017 I. Background Cheryl A. Kunkle, an inmate presently confined at the State Correctional Institution, Cambridge Springs, Pennsylvania, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Petition challenges the legality of Kunkle’s 2007 conviction on first degree homicide and related charges in the Court of Common Pleas of Monroe County, Pennsylvania. The required filing fee has been paid. In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), Petitioner is advised that first, she can have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose her ability to file a second or successive -1- petition absent certification by the United States Court of Appeals; or second, withdraw her petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act (AEDPA). However, if Petitioner elects to withdraw the instant petition in order to file one all-inclusive petition, she is forewarned that the AEDPA’s statute of limitations might bar the filing of any such successive petition. AND NOW, for the reasons set forth herein, IT IS HEREBY ORDERED that: 1. Petitioner shall within forty-five (45) days of the date of this Order complete and file with the Court the attached Notice of Election. 2. Failure of Petitioner to comply with this Order will result in this Court ruling on the motion, document or pleading as captioned. BY THE COURT: s/ Matthew W. Brann Matthew W. Brann United States District Judge -2- IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CHERYL A. KUNKLE, : : : : : : : : : Petitioner, v. JOSH SHAPIRO, ET AL., Respondents. No.: 4:17-CV-898 (Judge Brann) NOTICE OF ELECTION I, , petitioner in the above-captioned action, have read the Order of Court which accompanied this form notice. Pursuant to that order, I elect to proceed in this action as follows: I have labeled my petition as a petition for writ of habeas corpus under 28 U.S.C. § 2254. I choose to have the court rule on my petition as filed. I understand that I may be forever barred from presenting in federal court any claim not presented in this petition. I further understand that by doing so I lose my ability to file a second or successive petition absent certification by the Court of Appeals, and that the potential for relief is further limited in a second or successive petition. I have labeled my petition as a petition for writ of habeas corpus under 28 U.S.C. § 2254. I choose to withdraw the petition so that I may file one, all-inclusive petition under 28 U.S.C. § 2254 within the one-year limit for filing such a petition. I understand that the AEDPA statute of limitations might bar the filing of any such successive petition. -1- YOUR ELECTION ON THIS FORM, AS WELL AS THE FAILURE TO MAKE AN ELECTION, WILL BE BINDING ON YOU AS RELATES TO YOUR LITIGATION IN FEDERAL COURT OF ANY CLAIM RELATED TO THE CUSTODY YOU HAVE CHALLENGED. READ CAREFULLY THE ORDER ACCOMPANYING THIS FORM NOTICE OF ELECTION. I declare under penalty of perjury that the foregoing is true and correct. . Executed on (Date) ____________________________________ (Signature of Petitioner) -2-

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