1

Petitioner argues, in his Objections to Magistrate Judge’s Report

and Recommendation, that his petition for habeas corpus was misconstrued as a

petition made pursuant to 28 U.S.C. § 2254 when in fact it should have been

considered under 28 U.S.C. § 2241. Petitioner notes that he initially filed

the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241(c)(3) on

January 5, 2004. By Order of the undersigned filed January 12, 2004,

petitioner was directed to complete the local form for habeas claims made

pursuant to 28 U.S.C. § 2254 within 30 days. Petitioner did so, and his 

§ 2254 claim was the subject of Magistrate Welsh’s Report and Recommendation. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HAROLD THOMPSON, )

) Civil Action

Petitioner ) No. 04-CV-00025

)

vs. )

)

PENNSYLVANIA STATE PAROLE BOARD, )

THE DISTRICT ATTORNEY OF THE )

 COUNTY OF PHILADELPHIA and )

THE ATTORNEY GENERAL OF THE STATE )

 OF PENNSYLVANIA, )

)

Respondents )

O R D E R

 NOW, this 2nd day of June, 2006, upon consideration of

the pro se Petition for Writ of Habeas Corpus, which petition was

filed on February 2, 2004; upon consideration of the Response to

Petition for Writ of Habeas Corpus, which response was filed 

May 24, 2004; upon consideration of the Report and Recommendation

of Magistrate Judge Diane M. Welsh filed May 28, 2004; upon

consideration of the Objections to Magistrate Judge’s Report and

Recommendation,1 which objections were filed by petitioner on 

July 12, 2004; upon consideration of Response to Petitioner’s

Objections to Report and Recommendation, which response was filed

August 6, 2004; upon consideration of Reply to the Commonwealth of

Case 2:04-cv-00025-JKG Document 13 Filed 06/05/06 Page 1 of 3
2

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

recommendation, we are 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 72.1(IV)(b)

of the Rules of Civil Procedure for the United States District Court for the

Eastern District of Pennsylvania. Furthermore, district judges have wide

latitude regarding how they 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. 

We may accept, reject or modify, in whole or in part any of the findings or

recommendations made by the magistrate judge. Raddatz, supra. 

As stated above, petitioner contends in his objections that his

petition for habeas corpus should have been considered under 28 U.S.C. § 2241

rather than 28 U.S.C. § 2254. Petitioner acknowledges that he was not in

custody at the time that his petition was filed, but argues that a petitioner

need not be in custody in order to file a petition pursuant to 28 U.S.C. 

§ 2254. Accordingly, petitioner argues that it was clear error for Magistrate

Judge Welsh to interpret his petition as made pursuant to 28 U.S.C. § 2254,

which does require that a petitioner be “in custody” at the time of filing. 

Objections to Magistrate Judge’s Report and Recommendation at pages 2-3.

Petitioner’s objections are without merit. As respondents 

correctly argue in their response to petitioner’s objections, the United States

Court of Appeals for the Third Circuit has held that a state prisoner

challenging the execution of his sentence must do so pursuant to § 2254. 

(Footnote 2 continued):

-2-

Pennsylvania’s Response to Petitioner Harold Thompson’s Objections

to the Magistrate Judge’s Report and Recommendation, which reply

was filed August 25, 2004; it appearing that petitioner’s

objections are without merit; it further appearing after de novo

review of this matter that Magistrate Judge Welsh’s Report and

Recommendation correctly determined the legal and factual issues

presented in the petition for habeas corpus relief,

IT IS ORDERED that Magistrate Judge Welsh’s Report and

Recommendation is approved and adopted.

IT IS FURTHER ORDERED that petitioner’s objections are

overruled.2

Case 2:04-cv-00025-JKG Document 13 Filed 06/05/06 Page 2 of 3
(Continuation of footnote 2):

Coady v. Vaughn, 251 F.3d 480, 484-485 (3d Cir. 2001). Because § 2254 governs

petitioner’s request for relief, it was not clear error for Magistrate Judge

Welsh to consider Mr. Thompson’s petition under § 2254.

Moreover, even if we had considered Mr. Thompson’s petition as

being made pursuant to § 2241, the outcome would have been the same. The “in

custody” requirement applies to § 2241 as well as § 2254. See Maleng v. Cook,

490 U.S. 488, 490, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540, 544 (1989). The

Supreme Court has explained that 

The federal habeas corpus statute requires that the 

applicant must be “in custody” when the application for 

habeas corpus is filed. This is required not only by 

repeated references in the statute, but also by the history 

of the great writ. Its province, shaped to guarantee the 

most fundamental of all rights, is to provide an effective 

and speedy instrument by which judicial inquiry may be had 

into the legality of the detention of a person.

Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554,

559 (1968). Given that the “in custody” requirement applies to all petitions

for habeas corpus and that Mr. Thompson acknowledges that he was not in custody

when he filed his petition, it is clear that Mr. Thompson’s petition should be

dismissed. Accordingly, petitioner’s objections to the Report and

Recommendation are overruled. 

 

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IT IS FURTHER ORDERED that the pro se petition for

habeas corpus relief is denied without a hearing.

IT IS FURTHER ORDERED that because petitioner fails to

demonstrate denial of a constitutional right, a certificate of

appealability is denied.

IT IS FURTHER ORDERED that the Clerk of Court shall

close this case for statistical purposes.

BY THE COURT:

/s/James Knoll Gardner 

James Knoll Gardner

United States District Judge 

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