MARQUEZ v. COMMONWEALTH OF PA

Filing 11

ORDER adopting Report and Recommendations re 6 Report and Recommendations. The Report is adopted to the extent that it dismisses the Petition for failure to state a claim cognizable in habeas, albeit the dismissal is without prejudice to Petitione r seeking leave to amend his Petition in the United States District Court for the Eastern District of Pennsylvania to where we hereby ORDER the Clerk of this Court to TRANSFER this case FORTHWITH in order for that Court to address in the first instance Petitioners request for leave to amend his Petition. Signed by Judge Joy Flowers Conti on 1/23/2012. (smc )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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RAUL MARQUEZ,
Petitioner
vs.
COMMONWEALTH OF PENNSYLVANIA,
Respondent

Civil Action No. 11-1116
Judge Joy Flowers Conti/
Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER
Raul Marquez, (“Petitioner”) filed what he entitled as a “Petition for Habeas Corpus in
Abeyance” (the “Petition”). ECF No. 1. He originally filed the Petition in the United States
District Court for the Middle District, which transferred the case to this District, ECF No. 5,
because Petitioner was at the time of filing the Petition, incarcerated in the State Correctional
Institution at Greene (“SCI-Greene”), which is located in Waynesburg, Pennsylvania, Greene
County, which is within the territorial boundaries of the United States District Court for the
Western District of Pennsylvania. 28 U.S.C. ' 118(c).
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Report and
Recommendation of Magistrate Judge Kelly recommended that the Petition be dismissed
pre-service because it failed to state a claim cognizable in habeas, namely, complaining about the
failure of the Court of Common Pleas of Berks County to appoint counsel for Petitioner who sought
to file a petition for writ of certiorari in the United States Supreme Court from the Pennsylvania
Supreme Court’s denial of his allocatur petition in the Petitioner’s Post Conviction Relief Act
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(“PCRA”) proceedings. ECF No. 6.

After being granted an extension of time, Petitioner filed a

Response in the nature of Objections to the Report and Recommendation dated November 3, 2011
(“Objections”), ECF No. 9 and a Motion in the Nature of a Petition to Stay and Abey, ECF No. 10.
Petitioner’s Objections are not entirely clear. However, he appears to raise new claims in
the Objections which were not made in the Petition. See, e.g., ECF No. 9 at p. 2 (“now Petitioner
does realize that he’s [sic] cognizable claim to be cognizable under Habeas Corpus Writ . . . should
be for example: How the Commonwealth [convicted Petitioner] using Non-enacted and
non-Ratified Code, Status [sic] and Laws. . . .”). Petitioner further included a heading entitled
“Amendment Clause” and thereunder stated: “Petitioner hereby do [sic] attempt and request the
acceptance of the Amend [sic] of Petition for Habeas Corpus. . .” Id. We conclude that Petitioner
is now attempting to amend his Petition. Because, as the Report correctly noted, Petitioner’s
conviction arose out of the Court of Common Pleas of Berks County which is located within the
territorial boundaries of the United States District Court for the Eastern District of Pennsylvania
(“the Eastern District Court”) and because there are potentially Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”) statute of limitations concerns if the Court were to dismiss the Petition
outright given Petitioner’s apparent desire to amend, and in view of Petitioner’s request that this
case be stayed and abeyed, apparently due to concerns about the AEDPA statute of limitations, ECF
No. 10 at 2 (last paragraph), the Court determines that the best course of action would be to transfer
this case to the Eastern District, wherein Petitioner’s conviction was obtained, in accordance with
the practice of the United States District Courts located in Pennsylvania,1 and allow the Eastern
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Ortiz v. Pennsylvania, No. 3:10cv028, 2010 WL 936448, at *1 (M.D.Pa., March 15, 2010)
(“Magistrate Judge Malachy E. Mannion submitted his report and recommendation (Doc. 3) that
this action be transferred from this district (where petitioner is in custody) to the United States
District Court for the Eastern District of Pennsylvania (where petitioner was convicted) in keeping
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District Court to address Petitioner’s request for leave to amend his Petition as contained in
Petitioner’s objections.
Accordingly, after de novo review of the Report and the Objections thereto and all of the
pleadings in the case, it is hereby ORDERED that the Report is adopted to the extent that it
dismisses the Petition for failure to state a claim cognizable in habeas, albeit the dismissal is
without prejudice to Petitioner seeking leave to amend his Petition in the United States District
Court for the Eastern District of Pennsylvania to where we hereby ORDER the Clerk of this Court
to transfer this case forthwith in order for that Court to address in the first instance Petitioner’s
request for leave to amend his Petition.

/s/ Joy Flowers Conti
Joy Flowers Conti
U.S. District Judge
Dated: January 23, 2012
cc:

The Honorable Maureen Kelly

with agreed practice of the United States District Courts for the Middle, Eastern, and Western
Districts of Pennsylvania.”); Nightingale v. Vincent, Civ.A. No. 08-95J, 2008 WL 1943427, at *2
(W.D.Pa., May 2, 2008) (“Moreover, the federal district courts in the three separate districts in the
Commonwealth of Pennsylvania all follow the uniform practice of transferring habeas petitions
filed by persons incarcerated within their districts to the district which encompasses the county in
which the petitioner was convicted.”). See also Rouzer v. DiGuglielmo, Civ.A. No. 07-0268, 2007
WL 853750, at *1 (E.D.Pa., March 20, 2007) (“Here, Rouzer is incarcerated in this judicial district
but he was convicted and was sentenced in Fulton County, which is located in the Middle District of
Pennsylvania. See 28 U.S.C. § 118(b). The claims which Rouzer presents in his habeas petition deal
with the constitutionality of his conviction and sentence and the performance of his attorney. Given
that the records of his conviction and appeal are located in the Middle District of Pennsylvania, that
the District Attorney of Fulton County would be in the best position to respond to Rouzer's petition,
and that the primary witness presumed to have knowledge relevant to the claims of attorney
ineffectiveness practices in Chambersburg, Pennsylvania, we believe it is in the interests of justice
to transfer this petition to the Middle District.”) (footnote omitted).
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United States Magistrate Judge
RAUL MARQUEZ
HN3283
SCI-Greene
175 Progress Drive
Waynesburg, PA 15370

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