IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEFFREY MARTEN : CIVIL ACTION

Petitioner, :

 :

vs. :

 : NO. 05-0472

MARILYN BROOKS, Warden :

Respondent. : 

ORDER AND MEMORANDUM

O R D E R

AND NOW, this 3 day of April, 2006, upon consideration of the Petition for Writ of rd

Habeas Corpus filed Pursuant 28 U.S.C. § 2254 by petitioner, Jeffrey Marten, and the record in

this case, and the Report and Recommendation of United States Magistrate Judge Arnold C.

Rapoport dated March 3, 2006, and Petitioner’s Written Objections to the Report and

Recommendation, IT IS ORDERED as follows:

1. The Report and Recommendation of United States Magistrate Judge Arnold C.

Rapaport dated March 3, 2006, is APPROVED and ADOPTED;

2. Petitioner’s Written Objections to the Report and Recommendation are

OVERRULED;

3. The Petition for Writ of Habeas Corpus filed Pursuant to 28 U.S.C. § 2254 by

petitioner, Jeffrey Marten, is DENIED WITHOUT PREJUDICE; and,

4. A certificate of appealability will not issue on the ground that petitioner has not made

a substantial showing of a denial of a constitutional right as required under 28 U.S.C. §

2253(c)(2). 

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MEMORANDUM

The procedural history and the facts of the case are detailed in the Report and

Recommendation of United States Magistrate Judge Arnold C. Rapaport dated March 3, 2006,

and need not be repeated in this Memorandum. This Memorandum will focus on petitioner’s

Objections.

The gravamen of the Petition is that the Commonwealth has violated petitioner’s right to

a speedy appeal. See Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir. 1995) (citing Burkett v.

Cunningham, 826 F.2d 1208, 1221 (3d Cir. 1986)). In response, the respondents argue that

petitioner has not exhausted his state remedies.

The exhaustion issue was addressed in-depth in the Report and Recommendation. The

Magistrate Judge determined that petitioner had not yet exhausted his state remedies and then

analyzed the question whether exhaustion should be excused. This Court agrees with the

analysis in the Report, and the recommendation that exhaustion not be excused because,

notwithstanding the delay from the date of filing the Notice of Appeal in December, 1999, some

of which delay was attributable to petitioner, exhaustion should not be excused because there has

been ongoing activity in the appellate court and the trial court.

Petitioner objects to certain of the calculations in the Report and Recommendation

dealing with the delay and the appellate process attributable to petitioner. The Court agrees with

what is set forth in the Report and Recommendation on that issue. The remaining issues

addressed in the Objections do not bear on this Court’s conclusion that petitioner has failed to

exhaust in state court the issues raised in his Petition. Exhaustion will not be excused because,

notwithstanding the passage of time since the filing of the Notice of Appeal in December of

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1999, state proceedings have been ongoing and petitioner’s direct appeal is currently proceeding

in state court.

BY THE COURT:

/s/ Honorable Jan E. DuBois 

 JAN E. DUBOIS, J.

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