Opinion
Civil Action No. 04-2861.
September 23, 2004
REPORT AND RECOMMENDATION
Presently before this court is a pro se petition for writ of habeas corpus, filed by Nicholas A. Pracht ("Petitioner") pursuant to 28 U.S.C. § 2254. Petitioner, a state prisoner at the State Correctional Institution at Graterford, Pennsylvania, alleges, inter alia, that his conviction was obtained by plea of guilty which was unlawfully induced, violation of the privilege against selfincrimination, and denial of effective assistance of counsel. The Honorable William H. Yohn, Jr. referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). For the reasons set forth below, it is recommended that this petition be TRANSFERRED to the United States District Court for the Middle District of Pennsylvania.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts set forth in this section were obtained from Petitioner's Petition for W rit of Habeas Corpus.
Petitioner was convicted by a jury of involuntary deviate sexual intercourse and corruption of a minor's morals on December 8, 1998 before Judge G.E. Hoffer in the Cumberland County Court of Common Pleas. See Pet. at 5. Petitioner was sentenced to a term of six to fifteen years in a state correctional institution. See id. The Superior Court of Pennsylvania affirmed his conviction on May 8, 2000. See id. at 6. On June 8, 2000, Petitioner filed a petition for allowance of appeal in the Supreme Court of Pennsylvania, which was denied on February 28, 2002. See id.
On October 22, 2002, Petitioner was convicted of involuntary deviate sexual intercourse by virtue of his guilty plea before Judge Edgar B. Bayley in the Cumberland County Court of Common Pleas; he was sentenced to a term of 4-8 years in a state correctional institution. See id. At 5. This conviction was affirmed on November 10, 2003. See id. at 6. Petitioner's request for collateral relief pursuant to PCRA. was dismissed on November 26, 2003. See id. at 7-8. No further state appeals ensued, however, the within petition for habeas corpus was filed on June 29th, 2004.
II. Discussion
A. Transfer of Petition
A federal habeas corpus petition properly may be filed either in the district court for the district wherein the petitioner is in custody or in the district court for the district within which he was convicted and sentenced. See 28 U.S.C. § 2241 (d). However, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404 (a).
28 U.S.C. § 2241 (d) provides:
Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which 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.
Although petitioner in this case is incarcerated at Graterford Prison in the Eastern District of Pennsylvania, he was tried and convicted in Cumberland County located in the Middle District of Pennsylvania. Consequently, records pertinent to the conviction under attack herein are maintained in, and, hence, are more accessible to the Middle District Court. Also, prior counsel and potential witnesses are likely to be located in the Middle District. Such considerations of convenience and justice warrant a transfer of this case to the Middle District for hearing and determination. See 28 U.S.C. § 1404 (a). Accordingly I make the following:
28 U.S.C. § 1404 (a)states:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it may have been brought.
RECOMMENDATION
AND NOW, this 23rd day of September, 2004, for the reasons contained in the foregoing report, it is hereby recommended that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be TRANSFERRED to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 2241 (d). Based on this change in venue only, Petitioner has failed to show a denial of any constitutional right that would warrant a certificate of appealability.