ISOM v. FISHER et al
Filing
25
ORDER granting, without prejudice, 12 Motion to Dismiss; denying as moot 13 Motion to Appoint Counsel; denying as moot 13 Motion for Hearing; denying as moot 16 Motion to Appoint Counsel ; adopting 22 Report and Recommendation and denying certificate of appealability. As more fully stated in the Order. Signed by Judge Cathy Bissoon on 7/24/2013. A copy of this Order was mailed to Petitioner at his address of record. (dad)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIK ISOM,
)
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Petitioner,
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v.
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SUPERINTENDENT JON FISHER, et al., )
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Respondents.
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Civil Action No. 13-301
Judge Cathy Bissoon
Magistrate Judge Robert C. Mitchell
MEMORANDUM ORDER
Erik Isom (“Petitioner”) is a state prisoner who brings the instant petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, attacking his 2008 conviction in the Court of
Common Pleas of Washington County, Pennsylvania, of burglary, criminal trespass, attempted
theft by unlawful taking, criminal conspiracy to commit burglary, and conspiracy to commit theft
by unlawful taking. (Doc. 1 at 1).
This matter was referred to a United States Magistrate Judge for pretrial proceedings in
accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D of the
Local Rules for Magistrate Judges. On May 14, 2013, Respondents moved to dismiss this case
because Petitioner’s post-conviction relief petition still was pending in state court.1 (Doc. 12).
1
Respondents also asserted in this motion that Petitioner’s post-conviction relief petition was
untimely because Petitioner had failed to file it within one year of his conviction becoming final,
as is required under state law. (Doc. 12 at 2 n.4). Respondents explicitly stated that Petitioner
had not sought direct review of his conviction from the Pennsylvania Supreme Court, which
would have tolled this filing period. Id. Petitioner responded that he did, in fact, seek such
permission, and attached a copy of the Pennsylvania Supreme Court’s docket sheet to prove it.
(Doc. 23-3). The docket sheet appears to indicate that a petition for allocatur was timely filed
under state law. Id. at 4. A search on the Pennsylvania Unified Judicial System’s website,
http://ujsportal.pacourts.us/DocketSheets/Appellate.aspx, for cases before the Pennsylvania
Supreme Court, to which Petitioner was a party, returns the same docket sheet. While the
existence of such a petition ultimately is irrelevant to the resolution of the pending motion to
(continued…)
1
The magistrate judge issued a report and recommendation on July 3, 2013, recommending that
this petition be dismissed for this reason, and that a certificate of appealability be denied.
(Doc. 22). Petitioner timely filed objections to the report on July 15, 2013. (Doc. 24).
After de novo review of the pleadings and documents in the case, together with the report
and recommendation (Doc. 22), Petitioner’s objections thereto (Doc. 24), and Petitioner’s
supplemental filings (Doc. 23), the following ORDER is entered:
AND NOW, this 24th day of July, 2013,
IT IS HEREBY ORDERED that Respondent’s motion to dismiss (Doc. 12) is
GRANTED, and Petitioner’s petition for writ of habeas corpus is DISMISSED, WITHOUT
PREJUDICE to Petitioner seeking further relief if his post-conviction petition is not resolved at
by trial court in 90 days, or he exhausts his state court remedies, as appropriate.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner’s pending motions (Docs. 13 and 16) are
DENIED as MOOT.
IT IS FURTHER ORDERED that the magistrate judge’s report and recommendation
(Doc. 22), as amended by this order, is adopted as the opinion of this Court.
dismiss, Respondents’ seeming oversight raises serious questions that will need to be addressed,
should Petitioner file a subsequent habeas petition in this Court.
2
BY THE COURT:
s/Cathy Bissoon
CATHY BISSOON
UNITED STATES DISTRICT JUDGE
cc (via CM/ECF):
counsel of record
ERIK ISOM
HS3329
1120 Pike St., PO Box 999
Huntingdon, PA 16652
3
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