THOMPSON v. TODD et al

Filing 8

MEMORANDUM ORDER indicating that that the Petition is dismissed without prejudice pre-service because Petitioner has failed to exhaust her state court remedies. All pending motions are denied as moot; that the Report and Recommendation 4 of Magis trate Judge Kelly, is adopted as the opinion of the Court. A certificate of appealability is denied as jurists of reason would not disagree with the procedural holding that Petitioner has failed to exhaust her state court remedies. The Clerk is to mark the case closed. Signed by Judge Nora Barry Fischer on 12/12/13. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LYNNE THOMPSON,
Plaintiff,
vs.
RANDAL B. TODD, Individually;
ADMINISTRATOR; PRESIDENT
JUDGE; JOHN PITTMAN; STEVEN
ZAPPALA, JR.; THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA,
Defendants.

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Civil Action No. 13-1462
Judge Nora Barry Fischer/
Magistrate Judge Maureen P. Kelly

Re: ECF Nos. 2, 3, 4 and 7.

MEMORANDUM ORDER
The above-captioned pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus
by a Person In State Custody (the “Petition”) was received by the Clerk of Court on October 8,
2013, and was referred to Magistrate Judge Maureen P. Kelly for pretrial proceedings in
accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Civil Rules 72.C
and D.
Magistrate Judge Kelly’s Report and Recommendation, ECF No. 4, filed on November 4,
2013, recommended that the Petition be dismissed prior to service because Petitioner had a
currently pending appeal in the Pennsylvania Superior Court seeking to attack the very same
conviction that she was attacking in the present Petition. Service of the Report was made on the
Petitioner at her address of record. Petitioner was informed that, in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and the local rules, she had a specific

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period of time in which to file her objections. After being granted an extension of time in which
to do so, Petitioner filed her Objections. ECF No. 7.
Nothing in those Objections merits rejection of the Report or extended comment.
Notwithstanding Petitioner’s arguments, she simply cannot escape the fact that she has an appeal
currently pending in the Pennsylvania Superior Court concerning the very same conviction she is
attacking in the Petition before this Court. Because the appeal is currently pending, she has not
exhausted her state court remedies. Hence, her objections are OVERRULED.
Accordingly, after de novo review of the pleadings and the documents in the case,
together with the Report and Recommendation, the following order is entered:
AND NOW, this 12th day of December, 2013,
IT IS HEREBY ORDERED that the Petition is dismissed without prejudice pre-service
because Petitioner has failed to exhaust her state court remedies. All pending motions are denied
as MOOT.
IT IS FURTHER ORDERED that the Report and Recommendation, ECF No. 4, filed on
November 4, 2012, by Magistrate Judge Kelly, is adopted as the opinion of the Court. A
certificate of appealability is DENIED as jurists of reason would not disagree with the procedural
holding that Petitioner has failed to exhaust her state court remedies.
The Clerk is to mark the case closed.
/s/ Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge

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cc:

The Honorable Maureen P. Kelly
United States Magistrate Judge
Lynne Thompson
OT-0636
The Renewal Center
704 2nd Avenue
Pittsburgh, PA 15219

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