Magistrate Judge Maureen P. Kelly
Judge Kim R. Gibson
REPORT AND RECOMMENDATION
It is respectfully recommended that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person In State Custody ("the Petition") be transferred forthwith to the United States District Court for the Middle District of Pennsylvania because that is the District wherein Petitioner's state court conviction was obtained, and, as such, it is the more convenient forum for litigation of the underlying allegations of the Petition.
II. REPORTDaniel Wesling ("Petitioner"), is a state prisoner, currently confined at the State Correctional Institution in Somerset ("SCI-Somerset"), which is located within the territorial boundaries of the United States District Court for the Western District of Pennsylvania. In the Petition, he challenges the validity of his conviction, which was obtained in the Court of Common Pleas of Monroe County, which is located within the territorial boundaries of the United States District Court for the Middle District of Pennsylvania. ECF No. 2 ¶ 1(a). See also 28 U.S.C. § 118(b) (listing Monroe County as being within the Middle District). Because that conviction arose out of Monroe County, the interests of justice weigh in favor of transferring this case to the United States District Court for the Middle District of Pennsylvania.
A. Applicable Legal Principles and Discussion
The power of this Court to grant the writ is founded upon 28 U.S.C. § 2241(a) which provides that the "[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."
At the time of the commencement of this action, Petitioner was in prison at SCI-Somerset. Consequently, both the Western District and the Middle District have "jurisdiction" to entertain this petition. See 28 U.S.C. § 2241(d). See also Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) ("§ 2241(d) provides that when a petitioner is serving a state criminal sentence in a State that contains more than one federal district, he may file a habeas petition not only 'in the district court for the district wherein [he] is in custody,' but also '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.'"); Dunne v. Henman, 875 F.2d 244, 248-50 (9th Cir. 1989) ("The fact that a prisoner is outside the territorial limits of a federal district court does not deprive it of subject matter jurisdiction. A district court has subject matter jurisdiction over a habeas petition alleging a violation of federal law under federal question jurisdiction.") (citations omitted); Irving v. Breazeale, 265 F. Supp. 116, 120 n.9 (S.D. Miss. 1967) (even though petitioner was incarcerated in the Northern District of Mississippi, the Southern District of Mississippi, in which the petitioner's state trial was conducted, had jurisdiction over his habeas petition filed there), aff'd, 400 F.2d 231 (5th Cir. 1968). Although this Court possesses subject matter jurisdiction to entertain this Petition, it is not required to exercise such jurisdiction if the interests of justice counsel otherwise.
Section 2241(d) provides that
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.
1. Venue
The issue of proper venue may be raised sua sponte by a court. See Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996).
Venue in habeas corpus related cases filed by state prisoners challenging their convictions, is proper in either the federal district in which the state conviction was obtained or the federal district in which the petitioner was incarcerated at the time of filing the habeas petition. See Walker v. Lockhart, 620 F.2d 683, 684 n.1 (8th Cir. 1980) (although petitioner was confined in the Eastern District of Arkansas, he filed his habeas petition in the Western District wherein his state trial was held, the court held that "venue was properly laid in the Western District. 28 U.S.C. § 2241(d).").
In this case, either this Court or the United States District Court for the Middle District of Pennsylvania, has jurisdiction to hear this petition and venue is proper in either District. However, this Court must exercise its discretion and determine whether transferring this case to the Middle District would be "in furtherance of justice." 28 U.S.C. § 2241(d). In performing this venue analysis, courts may rely upon traditional venue considerations. See Braden v. 30th Judicial District, 410 U.S. 484, 493 (1973); Garcia v. Pugh, 948 F. Supp. 20, 23 (E.D. Pa. 1996). These considerations include: 1) the location where the underlying material events took place; 2) the location where records and witnesses pertinent to the claim are likely to be found; 3) the convenience of the forum for the petitioner and the respondent; and 4) the familiarity of the court with the applicable laws. Roman v. Ashcroft, 162 F. Supp.2d 755, 765 (N.D. Oh. 2001).
Application of those traditional venue considerations to the facts of this case reveals that this case should be transferred to the United States District Court for the Middle District of Pennsylvania. First, the underlying material event, which was Petitioner's criminal trial and conviction took place in Monroe County, Pennsylvania in the Middle District of Pennsylvania. Second, all of the records and most of the participants are presumably located in Monroe County. 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 Monroe County to litigate this Petition in the Middle District. Presumably, Petitioner would be temporarily transferred to a Department of Corrections facility near Monroe County were a hearing to be required. Fourth, the factor of the familiarity of the court with the applicable laws is evenly balanced as both this Court and the Middle District Court are familiar with the law of Pennsylvania. Considering these four factors in the context of this action, the factors weigh heavily in favor of transferring this case to the Middle District where the state trial was held.
Moreover, it has been the general practice of the United States District Courts in Pennsylvania to transfer habeas corpus petitions to the federal district where the Common Pleas Court is located that conducted the underlying criminal trial of the petitioner. Ortiz v. Pennsylvania, No. 3:10cv028, 2010 WL 936448, at *1 (M.D. Pa. March 15, 2010) (action transferred from the "district (where petitioner is in custody) to the United States District Court for the Eastern District of Pennsylvania (where petitioner was convicted) in keeping with agreed practice of the United States District Courts for the Middle, Eastern, and Western Districts of Pennsylvania."); Nightingale v. Vincent, No. Civ.A. 08-95J, 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."). See also Rouzer v. DiGuglielmo, Civ.A. No. 07-0268, 2007 WL 853750, at *1 (E.D. Pa. March 20, 2007).
Considering all of the relevant factors, it appears that they weigh in favor of transferring this Petition to the Middle District, the District wherein Petitioner's criminal trial was held.
We leave it to the transferee court to rule on Petitioner's motion for stay and abeyance. --------
III. CONCLUSIONBased on the considerations set forth herein, it is recommended that this case be transferred forthwith to the United States District Court for the Middle District of Pennsylvania.
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. Dated: November 30, 2018
Respectfully submitted,
s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Kim R. Gibson
United States District Judge
DANIEL WESLING
LP8976
SCI Somerset
1590 Walters Mill Road
Somerset, PA 15510
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