Opinion
Civil Action 24-744
06-04-2024
LANA KAY ROE by MARK MARVIN, Petitioner, v. WARDEN OF SCI MUNCY; and GREENE COUNTY DISTRICT ATTORNEY, Respondents.
Arthur J. Schwab, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
It is respectfully recommended that the Petition for Writ of Habeas Corpus (the “Petition”), ECF No. 1, be dismissed without prejudice, sua sponte, pursuant to Rule 4 of the Rules Governing Section 2254 Cases. It is further recommended that a certificate of appealability - to the extent that one is necessary - be denied.
II. REPORT
Currently before this Court is the federal habeas Petition, ECF No. 1, and supporting brief, ECF No. 2, brought by Mark Marvin (“Marvin”) on behalf of Lana Kay Roe (“Petitioner”), collaterally attacking her state convictions at Docket Nos. CP-30-CR-343-2012 and CP-30-CR-344-2012. ECF No. 1 at 1. Both the Petition and supporting brief are signed by Marvin. Neither document is signed by Petitioner.
Marvin is not an attorney. Instead, he appears to be an individual who has a history of involving himself in the cases of female inmates. See, e.g. Layman by Marvin v. Sheriff, Orange Cnty., No. 21-10907 (S.D.N.Y, filed Dec. 6,2021). See also ECF No. 345, United States v. Diehl-Armstrong, No 07-26 (W.D. Pa. Apr. 13, 2018); ECF No. 3, Diehl-Armstrong v. United States, No. 17-224 (W.D. Pa. Apr. 13, 2018).
A. Rule 4 of the Rules Governing Section 2254 Cases
Pursuant to Rule 4 of the Rules Governing Section 2254 cases, this Court may dismiss the Petition if it plainly appears on its face that the Petitioner is not entitled to federal habeas relief.
Rule 4 provides in relevant part that:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
In interpreting Rule 4, the Advisory Committee Notes to Rule 4 observe that:
28 U.S.C. § 2243 requires that the writ shall be awarded, or an order to show cause issued, “unless it appears from the application that the applicant or person detained is not entitled thereto.” Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition. ~
In addition to ordering state court records and/or opinions, a federal habeas court may, under Rule 4, take judicial notice of those state court records and/or state court opinions as well as its own court records. See, e.g., Barber v. Cockrell, No. 01-CV-0930, 2002 WL 63079, at *1 n.4 (N.D. Tex. Jan. 8, 2002) (in a Rule 4 case, the court took judicial notice of its own records of a prior habeas petition filed by the petitioner); United States ex. rel. Martin v. Gramley, No. 98 C 1984, 1998 WL 312014, at *1 (N.D. Ill. June 3, 1998) (in a Rule 4 summary dismissal, the court took “judicial notice of the opinion of the Illinois Appellate Court in this case.”).
A petition for a writ of habeas corpus may, in certain circumstances, be brought by a “next friend” on behalf of another person who is in custody. 28 U.S.C. § 2242. The next friend does not become a party to the habeas corpus action “but simply pursues the cause on behalf of the detained person, who remains the real party in interest.” Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). “‘[N]ext friend' standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another.” Id. When someone other than the Petitioner files a petition, the “next friend” must first demonstrate that he or she has standing to act on the person's behalf:
First a ‘next friend' must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the ‘next friend' must be truly dedicated to the best interests of the person on whose behalf she seeks to litigate, and it has been further suggested that a ‘next friend' must have some significant relationship with the real party in interest.Id. at 163-64 (citations omitted). “The burden is on the ‘next friend' to establish the propriety of his status and thereby justify the jurisdiction of the court.” Id. at 164.
Here, Marvin has failed to establish that he has a significant relationship with Petitioner. Further, even if the Court assumes that Marvin has a significant relationship with Petitioner and seeks to act in her best interest, Marvin has not offered any explanation why Petitioner is incapable of asserting her own rights. Accordingly, because the Petition and supporting brief do not set forth any adequate reason for the need to resort to the “next friend” device, Marvin lacks standing to bring this Petition on behalf of Petitioner. The Petition should be dismissed, without prejudice to Petitioner filing her own federal habeas petition under 28 U.S.C. § 2254, if she wishes.
B. Certificate of Appealability.
To the extent that one is applicable, a certificate of appealability should be denied because jurists of reason would not find it debatable whether Marvin failed to establish next friend standing to bring the Petition on Roe's behalf. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended the Petition be dismissed without prejudice, sua sponte, pursuant to Rule 4 of the Rules Governing Section 2254 Cases. It is further recommended that a certificate of appealability be denied, to the extent that one is applicable here.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.