Opinion
Civil Action No. 12-cv-02723
02-04-2013
FELDON BUSH, SR., Petitioner v. MIRIROSA LAMAS, Respondent
ORDER
NOW, this 1st day of February, 2013, upon consideration of the pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, which petition was filed May 17, 2012 by petitioner Feldon Bush, Sr., pro se; upon consideration of the Response to Petition for Writ of Habeas Corpus filed October 11, 2012 by respondent Mirirosa Lamas; upon consideration of the Report and Recommendation of United States Magistrate Judge Henry S. Perkin dated November 29, 2012 and filed November 30, 2012; it appearing that as of the date of this Order that petitioner has not filed any objections to the Report and Recommendation of Magistrate Judge Perkin; it further appearing after review of this matter that Magistrate Judge Perkin's Report and Recommendation correctly determined the legal and factual issues presented in the petition for habeas corpus relief,
The docket entries in this matter identify two respondents: Mirirosa Lamas and "THE ATTORNEY GENERAL OF THE STATE OF ________". They also reflect that Philadelphia Assistant District Attorney Anne Palmer has entered an appearance for each respondent. In her Response to Petition for Writ of Habeas Corpus, Attorney Palmer depicts the caption as "FELDON BUSH, SR v. MIRIROSA LAMAS ET AL." In her response, Attorney Palmer refers to her clients in the plural as "Respondents".
On October 11, 2012, pro se petitioner Feldon Bush Sr. filed his habeas corpus petition in two different formats. He filed a fifteenpage Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Document 1) utilizing a fillintheblanks preprinted form. Attached to his petition is a twentysix page document titled "WRIT OF HABEAS CORPUS" (Document 11). (In footnote 1 on page 1 and footnote 19 on page 6 of his Report and Recommendation, Magistrate Judge Perkin interprets Document 11 to be a Memorandum of Law in Support of Do cument 1.)
The caption of Document 1 contains the preprinted words "Petitioner (include the name under which you were convicted)" after which petitioner wrote "FELDON BUSH SR.", and the preprinted words "v. Respondent (authorized person having custody of petitioner)" after which petitioner wrote "MIRIROSA LAMAS".
Following that, the caption of Document 1 contains the preprinted words "The Attorney General of the State of", following which there is a blank space. Petitioner did not fill in this blank. Document 1 was signed and verified by the petitioner Feldon Bush Sr. on May 14, 2012.
Document 11, the "Writ of Habeas Corpus" is a typewritten document perpared by or for petitioner. It contains the caption "FELDON BUSH SR., Petitioner, v. MARIROSA LAMAS, Respondant [sic]." Paragraph 2. of Document 11 states: "2. Marirosa Lamas, Respondent in her capacity as Superintendent, is the keeper at SCIRockview." (In the caption of Document 1, petitioner spells respondent's first name "MIRIROSA". In the caption and body of Document 11, petitioner spells it: "MARIROSA".)
Nowhere in the caption or body of either Document 1 or Document 11 does petitioner mention or refer to The Attorney General of the Commonwealth of Pennsylvania, or of any other state. Accordingly, notwithstanding the contrary assertion in the docket, I conclude that petitioner sued, and intended to sue, only one respondent (Mirirosa/Marirosa Lamas) in his habeas corpus petition.
IT IS ORDERED that Magistrate Judge Perkin's Report and Recommendation is approved and adopted.
IT IS FURTHER ORDERED that the pro se petition for habeas corpus relief is dismissed with prejudice and without an evidentiary hearing.
IT IS FURTHER ORDERED that because petitioner has not met statutory requirements to have his case heard, and no reasonable jurist could find this procedural ruling debatable, and because petitioner fails to demonstrate denial of a constitutional right, a certificate of appealability is denied.
IT IS FURTHER ORDERED that the Clerk of Court shall close this case for statistical purposes.
BY THE COURT:
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James Knoll Gardner
United States District Judge