Opinion
Civil Action 3: 21-cv-00115
07-29-2021
JOHN PASSMORE, Petitioner, v. ERIC TICE, PENNSYLVANIA ATTORNEY GENERAL, AND DISTRICT ATTORNEY OF BUCKS COUNTY, Respondents.
Stephanie L. Haines United States District Judge
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY CHIEF UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Petition for Writ of Habeas Corpus (“the Petition”) filed pursuant to 28 U.S.C. § 2254 by Petitioner, John Passmore, be transferred to the United States District Court for the Eastern District of Pennsylvania because Petitioner is challenging the validity of his conviction that was obtained in the Court of Common Pleas of Bucks County, located in the Eastern District of Pennsylvania.
II. REPORT
Petitioner is currently incarcerated at the State Correctional Institution at Somerset, located in Somerset, Pennsylvania, which is within the territorial boundaries of the United States District Court for the Western District of Pennsylvania. 28 U.S.C. § 118(c). In the Petition, he challenges the validity of his conviction that was obtained at Case No. CP-09-CR-0005715-2002 in the Court of Common Pleas of Bucks County, which is located within the territorial boundaries of the United States District Court for the Eastern District of Pennsylvania. (ECF No. 1 at ¶ 1). Because that conviction arose out of Bucks County, the interests of justice weigh in favor of transferring this case to the United States District Court for the Eastern District of Pennsylvania.
The power of this court to grant the writ is founded upon 28 U.S.C. § 2241(a) which provides that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”
When a state prisoner files a petition for a writ of habeas corpus in a state like Pennsylvania, that contains two or more Federal judicial districts:
the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.28 U.S.C. § 2241(d) (emphasis added).
The issue of proper venue may be raised sua sponte by a court. See Stjerholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Garcia v. Pugh, 948 F.Supp. 20, 23 (E.D. Pa. 1996). To the extent that such action by a court requires notice to Petitioner and an opportunity to be heard before a transfer on grounds of venue, the issuance of this report and recommendation and the opportunity to file objections provides the necessary notice and opportunity to be heard. See, e.g., Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998); Folkner v. Wilson, Civ. A. 06-47, 2006 WL 1509388 (W.D. Pa. Feb. 28, 2006).
In evaluating whether to transfer, the court should weigh “traditional venue considerations, ” including “where all the material events took place, where “records and witnesses pertinent to petitioner's claim are likely to be found, ” the convenience of the parties, and the familiarity of the court with the applicable laws.. Braden v. 30th Judicial District, 410 U.S. 484, 493 (1973); see also Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (discussing traditional venue considerations).
Application of these traditional venue considerations to the facts of this case reveals that this case should be transferred to the United States District Court for the Eastern District of Pennsylvania. First, the underlying material event, which was Petitioner's criminal trial, conviction, and sentencing, took place in Bucks County, Pennsylvania, in the Eastern District of Pennsylvania. Second, the records of conviction, transcripts of proceedings, and witnesses are presumably located within the Eastern District of Pennsylvania. Third, in terms of convenience of the forum, if a hearing is held, it will be more convenient for most of the witnesses and the District Attorney of Bucks County to litigate the issues raised in the petition in the Eastern District of Pennsylvania. Fourth, the factor of the familiarity of the court with the applicable laws is evenly balanced as both this Court and the Eastern District Court are familiar with the law of Pennsylvania. Considering all of these factors in the context of this particular action, the factors weigh heavily in favor of transferring this case to the United States District Court for the Eastern District of Pennsylvania where Petitioner's state criminal trial was held. Moreover, the transfer of this action would not result in any substantial delay or prejudice to Petitioner. See Garcia v. Pugh, 948 F.Supp. 20, 23 (E.D.Pa. 1996).
Further, “[i]t has been the general practice of the federal district courts in Pennsylvania to transfer habeas corpus petitions to the federal district court where the Court of Common Pleas is located that conducted the underlying criminal trial of the petitioner.” Aponte v. Coleman, Case No. 2:11-cv-00817, 2011 WL 4368376, at *2 (W.D.Pa. Aug. 22, 2011), report and recommendation adopted by, 2011 WL 4368682 (W.D.Pa. Sept. 19, 2011); Nightingale v. Vincent, Case No. 3: 08-cv-00095, 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.”).
III. CONCLUSION
After weighing all of the relevant factors and considering the general court practice, it is recommended that the case be transferred to the Eastern District of Pennsylvania, the situs of Petitioner's state court criminal trial.
Petitioner is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner may file written objections to this Report and Recommendation by August 16, 2021. Petitioner is advised that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).