ELY v. PSZCZOLKOWSKI et al

Filing 26

MEMORANDUM ORDER indicating that, for reasons stated within, the petition for writ of habeas corpus is transferred to the United States Court of Appeals for the Third Circuit for consideration as an application to file a successive petition as requir ed under 28 U.S.C. § 2244(b)(3) forthwith; that the Report and Recommendation (ECF No. 24 ) is adopted in part, as the opinion of this Court, to the extent set forth herein; that Petitioner's motion at ECF No. 25 is granted; that the Clerk of Court is ordered to mark this case closed. Signed by Judge Nora Barry Fischer on 3/9/18. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GEORGE F. ELY,
Petitioner,
v.
KAREN PSZCZOLKOWSKI, Warden;
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA; and the
DISTRICT ATTORNEY OF
WASHINGTON COUNTY,
PENNSYLVANIA,
Respondents.

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Civil Action No. 2: 17-cv-0893
United States District Judge
Nora Barry Fischer

MEMORANDUM ORDER
Petitioner, George Ely, a state prisoner, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (ECF No. 4). The case was referred to United States Magistrate Judge
Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrate Judges Act, 28
U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges.
The magistrate judge filed a Report and Recommendation on February 20, 2018 (ECF
No. 24) recommending that the Petition for Writ of Habeas Corpus be dismissed because the
petition is a second or successive petition and Petitioner had not received an order as required by
28 U.S.C. § 2244(b)(3)(A) from the United States Court of Appeals for the Third Circuit
authorizing this Court to consider the Petition. Further, the Report and Recommendation
recommended that a certificate of appealability be denied.

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Petitioner was advised that written objections to the Report and Recommendation were
due by March 9, 2018. On March 8, 2018,1 the Court received a filing from Petitioner in which
he states that he wishes to withdraw his Petition because he acknowledges that the Court does
not have jurisdiction and seeks assistance “with the necessary application to apply through the
Third Circuit Court of Appeals.” (ECF No. 25).
After de novo review of the Petition and documents in the case, together with the Report
and Recommendation, and the filing by Petitioner in response to the Report and
Recommendation, the Court, as explained below, declines to adopt the Report and
Recommendation insofar as it recommends that the Petition be dismissed; rather the Court will
transfer the Petition to the United States Court of Appeals for the Third Circuit. However, the
Court will adopt the Magistrate Judge’s Report and Recommendation in all other respects.
Petitioner, through his recent filing, acknowledges that he was required to obtain
authorization from the Court of Appeals pursuant to 28 U.S.C. § 2244. The statute provides that
the district court shall dismiss a second or successive petition that has not been authorized by the
court of appeals. 28 U.S.C. § 2244(b)(1), (4). Notwithstanding the “dismissal” language in §
2244(b), federal appellate courts have ruled that if the prisoner improperly files a second or
successive petition without having first obtained authorization by the court of appeals, the district
court has the option of transferring the petition to the court of appeals. The United States Court
of Appeals for the Third Circuit permits, but does not mandate, transfer. Robinson v. Johnson,
313 F.3d 128, 139 (3d Cir 2002), cert. denied, 540 U.S. 826 (2003); Sewell v. Rozum, No. 2:13cv-0714, 2013 WL 3973968 (W.D.Pa. July 31, 2013). See also Federal Habeas Manual (Brian
Means), § 11:81.

The filing is dated and signed as of March 4, 2018, and has been deemed a “Motion to
Withdraw Case.”
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AND NOW, this 9th day of March, 2018:
It appearing that Petitioner is challenging the very same conviction which he has
previously challenged in this Court (Civil Action No. 08-cv-0001); and
It further appearing that 28 U.S.C. § 2244(b)(3) authorizes the relevant federal circuit
court of appeals, and only that court, to determine if a “second or successive” habeas petition
under the Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. § 2241, et seq.) may
be filed in a district court. Therefore, it is
ORDERED that the petition for writ of habeas corpus is transferred to the United States
Court of Appeals for the Third Circuit for consideration as an application to file a successive
petition as required under 28 U.S.C. § 2244(b)(3) FORTHWITH; and
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 24) is
adopted in part, as the opinion of this Court, to the extent set forth herein.
IT IS FURTHER ORDERED that Petitioner’s motion at ECF No. 25 is GRANTED.
The Clerk of Court is ORDERED to mark this case CLOSED.
BY THE COURT:
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc:

GEORGE F. ELY
3573175
Northern Correctional Facility
112 Northern Regional Correctional Drive
Moundsville, WV 26041
(via U.S. First Class Mail)
Jerome A. Moschetta
Washington County District Attorney's Office
(via ECF electronic notification)

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