Petitioner Warren O’Connell filed his pro se petition for Writ of 1

Habeas Corpus while incarcerated at the State Correctional Institution at

Houtzdale, Pennsylvania. He properly named George Patrick, the Superintendent

of the institution, as the respondent. Petitioner was subsequently

transferred to the Fayette State Correctional Institution at LaBelle,

Pennsylvania. Accordingly, Magistrate Judge Hart has replaced Mr. Patrick

with Harry Wilson, Superintendent of the Fayette State Correctional

Institution, as the respondent in this matter. Nevertheless, the real parties

in interest in this action remain the same as before the substitution of

respondent Patrick, and the substitution has had no effect upon the merits or

disposition of this petition. 

Petitioner improperly commenced this pro se action on April 1, 2

2004 by failing to file his habeas corpus petition on the proper forms. By

Order of United States Senior District Judge Robert F. Kelly dated April 23,

2004, petitioner was given a blank copy of the current form for filing

pursuant to 28 U.S.C. § 2254. Petitioner properly filed his revised pro se

habeas petition on May 7, 2004. Accordingly, I need only consider the latter

petition because the first petition is rendered moot by the filing of the

amended petition on May 7, 2004.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WARREN O’CONNELL, )

 ) Civil Action

Petitioner ) No. 04-CV-1485

 ) 

vs. )

 )

GEORGE PATRICK, Superintendent; ) 1

LYNNE ABRAHAM, District Attorney )

 of the County of Philadelphia; )

 and )

GERALD PAPPERT, Attorney )

 General of the State of ) 

 Pennsylvania, )

 )

Respondents )

O R D E R

NOW, this 14th day of August, 2007, upon consideration

of the following documents and pleadings:

1) pro se Petition for Writ of Habeas Corpus, filed

by petitioner in the United States District Court

for the Eastern District of Pennsylvania on 

April 1, 2004 ; 2

Case 2:04-cv-01485-JKG Document 34 Filed 08/15/07 Page 1 of 5
Three of petitioner’s four objections are a restatement of issues 3

raised in his petition for habeas corpus relief. One objection, however, was

not raised in his petition. That objection alleges a violation of Federal

Rule of Appellate Procedure 23. It is the first time petitioner has sought

relief on this basis. 

The petition for habeas corpus was initially filed while 4

petitioner’s state court claims were unexhausted. Therefore, Magistrate Judge

Hart’s January 21, 2005 Report and Recommendation recommended that

(Footnote 4 continued):

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2) pro se Petition for Writ of Habeas Corpus (on

corrected forms)filed by petitioner on 

May 7, 2004;

3) Response in Opposition to Petition for Writ of

Habeas Corpus, which response was filed by

respondents on September 30, 2004; 

4) Report and Recommendation of United States

Magistrate Judge Jacob P. Hart filed January 21,

2005;

5) Petitioner’s Objection to the Report and

Recommendation, which objection was filed 

February 2, 2005;

6) Respondents’ Response to Petition for Writ of

Habeas Corpus, which response was filed 

December 20, 2006;

7) Supplemental Report and Recommendation of United

States Magistrate Judge Jacob P. Hart filed

January 18, 2007; and

8) Written Objections to the Supplemental Report and

Recommendation filed by petitioner on January 26,

2007 ; 3

it appearing that petitioner’s petition for habeas corpus is

without merit; it further appearing that, after de novo review of

this matter, Magistrate Judge Hart’s Supplemental Report and

Recommendation correctly determined the legal and factual issues

presented in the petition for habeas corpus relief,4

Case 2:04-cv-01485-JKG Document 34 Filed 08/15/07 Page 2 of 5
(Continuation of footnote 4):

April 1, 2004 petition be dismissed. Subsequently, petitioner’s direct

appeals in state court were completed. Therefore, the district court did not

act on the Report and Recommendation. Accordingly, the petition for habeas

corpus relief was recommitted to Magistrate Judge Hart by my June 16, 2006

Order. 

Magistrate Judge Hart’s initial Report and Recommendation concerns

a state remedy exhaustion issue that became moot after petitioner’s state

court claims concluded. Therefore, I will consider Magistrate Judge Hart’s

Supplemental Report and Recommendation as the pertinent response to

petitioner’s claims.

When objections are filed to a magistrate judge’s report and 5

recommendation, I am required to make a de novo determination of those

portions of the report, findings or recommendations made by the magistrate 

judge to which there are objections. 28 U.S.C. § 636(b)(1); Rule of Civil

Procedure of the United States District Court for the Eastern District of

Pennsylvania 7.2(IV)(b). Furthermore, district judges have wide discretion in

determining how to treat recommendations of the magistrate judge. See United

States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). 

Indeed, by providing for a de novo determination rather than a de

novo hearing, Congress intended to permit a district judge, in the exercise of

the court’s sound discretion, the option of placing whatever reliance the

court chooses to place on the magistrate judge’s proposed findings and

conclusions. I may accept, reject or modify, in whole or in part, any of the

findings or recommendations made by the magistrate judge. Raddatz, supra.

As noted above, I conclude that three of petitioner’s four

objections to Magistrate Judge Hart’s Supplemental Report and Recommendation

are nothing more than a restatement of certain claims contained in his

underlying petition for habeas corpus. Specifically, these objections concern

petitioner’s claims that he was denied the benefit of a plea bargain, received

ineffective assistance of counsel, and was subjected to the jurisdiction of

the state court before federal jurisdiction had been relinquished. Upon

review of the Supplemental Report and Recommendation, together with de novo

review of these three matters, I conclude that the Supplemental Report and

Recommendation correctly determined the legal issues raised by petitioner. 

(Continuation of footnote 5):

-3-

IT IS ORDERED that the Supplemental Report and

Recommendation of United States Magistrate Judge Jacob P. Hart is

approved and adopted. 

IT IS FURTHER ORDERED that petitioner’s objections to

the Supplemental Report and Recommendation are overruled.5

Case 2:04-cv-01485-JKG Document 34 Filed 08/15/07 Page 3 of 5
(Footnote 5 continued):

Petitioner’s other objection avers that since filing his petition

for habeas corpus, he has been transferred to multiple prison facilities

without this court’s permission in violation of Federal Rule of Appellate

Procedure 23(a). This issue was not presented to Magistrate Judge Hart in

Petitioner O’Connell’s habeas petition. According to E.D.Pa.R.Civ.P.

72.1(IV)(c), all new issues are to be addressed to the United States

Magistrate Judge unless justice requires otherwise. I note that the majority

of courts in this district treat claims raised anew in objections to a

magistrate judge’s report and recommendation as waived. See Ramos v. Kyler,

No. Civ.A. 03-2051, 2004 WL 828363, at *4 (E.D.Pa. April 12, 2004)(Yohn, J.). 

Regardless, I find this objection to be without merit. 

Appellate Rule 23 only applies to prisoner transfers which occur

after a district court’s decision has been issued and while appellate review

is pending. Hairston v. Nash, 165 Fed.Appx. 233, 235 (3d Cir. 2006). This

matter is not currently pending before the United States Court of Appeals for

the Third Circuit, nor was it at the time of the alleged transfers. The

purpose of Rule 23(a) is to prevent officials from removing an inmate from the

territorial jurisdiction of the court in which his or her habeas petition is

pending. Hairston, supra. (citing Hammer v. Meachum, 691 F.2d 958, 961 

(10th Cir. 1982)). 

Although it appears that petitioner has been transferred between

multiple prison facilities, he has not been moved outside the territorial

jurisdiction of this court. Moreover, petitioner has consistently

communicated his changes of address to this court and has apparently received

all pertinent filings related to this proceeding. It does not appear that

petitioner’s transfers were made in an attempt to subvert the prosecution of

his petition for habeas corpus relief. Thus, this objection is overruled. 

Accordingly, I approve and adopt Magistrate Judge Hart’s

Supplemental Report and Recommendation and overrule petitioner’s objections.

-4-

IT IS FURTHER ORDERED that the pro se petition for

habeas corpus relief filed May 7, 2007 is denied without a

hearing, and dismissed.

IT IS FURTHER ORDERED that the pro se petition for

habeas corpus relief filed April 1, 2004 is dismissed as moot. 

IT IS FURTHER ORDERED that because petitioner fails to

demonstrate denial of a constitutional right, a certificate of

appealability is denied. 

Case 2:04-cv-01485-JKG Document 34 Filed 08/15/07 Page 4 of 5
-5-

IT IS FURTHER ORDERED that the Clerk of Court shall

mark this matter closed for statistical purposes. 

BY THE COURT:

/s/ James Knoll Gardner 

James Knoll Gardner

United States District Judge

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