1Although Petitioner names several respondents in his caption, the proper

Respondent in this action would be the “warden of the facility where the prisoner is being

held, not . . . some other remote supervisory official.” Rumsfeld v. Padilla, 124 S.Ct. 2711,

2718 (2004).

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD J. NICHOLAS, :

 :

Petitioner, : CIVIL NO. 4:06-CV-1265

 :

v. : (Judge Caputo)

 :

MARILYN BROOKS, et al., :

 :

Respondents. :

 

EDWARD J. NICHOLAS, :

 :

Petitioner, : CIVIL NO. 4:06-CV-1849

 :

v. : (Judge Caputo)

 :

MARILYN BROOKS, et al., :

 :

Respondents. :

M E M O R A N D U M

I. Background

Petitioner, Edward J. Nicholas, while an inmate at the State Correctional Institution

in Albion, Pennsylvania, commenced the above-captioned actions with pro se petitions for

writ of habeas corpus filed pursuant to the provisions of 28 U.S.C. § 2254. Also pending in

CIVIL NO. 4:06-CV-1849 is Petitioner’s application to proceed in forma pauperis (Doc. 2).

The Court has reviewed the two cases and found that they involve a common Respondent,1

they arise from a common set of operative facts, and they involve common questions of

Case 4:06-cv-01265-ARC-KH Document 40 Filed 10/16/06 Page 1 of 5
2

law. For the reasons outlined below, the Court will direct that the cases be consolidated

pursuant to Federal Rule of Civil Procedure 42(a), and the consolidated matter will proceed

under Civil Action No. 4:06-CV-1265, which was the action first filed by Petitioner. 

II. Discussion

Under Rule 11 of the Rules Governing § 2254 Habeas Petitions, subject to

exceptions not relevant here, the Federal Rules of Civil Procedure apply to § 2254 habeas

proceedings. See Rule 11 of the Rules Governing § 2254 Habeas Petitions, 28 U.S.C. foll.

§ 2254 (1977). Rule 42(a) of the Federal Rules of Civil Procedure states:

When actions involving a common question of law or fact are

pending before the court, it may order a joint hearing or trial of any

or all the matters in issue in the actions; it may order all the actions

consolidated; and it may make such orders concerning proceedings

therein as may tend to avoid unnecessary costs or delay.

Fed. R. Civ. P. 42(a).

Although both petitions name several respondents, the only appropriate Respondent

for both petitions would be the “warden of the facility where the prisoner is being held, not .

. . some other remote supervisory official.” Rumsfeld v. Padilla, 124 S.Ct. 2711, 2718

(2004). Moreover, both petitions challenge Petitioner’s conviction and sentencing in the

Dauphin County Court of Common Pleas in criminal docket # 3685 of 1997 (“3685 CR

1997”). To obtain relief on the petitions, Petitioner bears the burden of demonstrating that

the State court adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of Federal law, as determined by the Supreme Court of the

United States . . . [or] resulted in a decision that was based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d)(1) and (2). The same conviction and

sentence are challenged in both of the above-captioned actions, and the facts and legal

Case 4:06-cv-01265-ARC-KH Document 40 Filed 10/16/06 Page 2 of 5
3

standard are identical for both. Consequently, since the actions contain common factors of

law and fact, and they involve the same parties, this Court will order the consolidation of the

two actions pursuant to Rule 42(a) and will proceed with the consolidated matter under

Petitioner’s first filed action, Civil Action No. 4:06-CV-1265, upon the issues stated therein.

An appropriate Order follows.

Dated: October 16, 2006. /s/ A. Richard Caputo 

A. RICHARD CAPUTO

United States District Judge

Case 4:06-cv-01265-ARC-KH Document 40 Filed 10/16/06 Page 3 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD J. NICHOLAS, :

 :

Petitioner, : CIVIL NO. 4:06-CV-1265

 :

v. : (Judge Caputo)

 :

MARILYN BROOKS, et al., :

 :

Respondents. :

 

EDWARD J. NICHOLAS, :

 :

Petitioner, : CIVIL NO. 4:06-CV-1849

 :

v. : (Judge Caputo)

 :

MARILYN BROOKS, et al., :

 :

Respondents. :

O R D E R

AND NOW, THIS 16th DAY OF OCTOBER, 2006, in accordance with the foregoing

memorandum, IT IS HEREBY ORDERED THAT:

1. Petitioner’s application for leave to proceed in forma pauperis (Doc. 2) in

CIVIL NO. 4:06-CV-1849 is GRANTED only for the purpose of filing the

petition. 

2. The Clerk of Court is directed to consolidate Nicholas v. Brooks, Civil Action

No. 4:06-CV-1849 into Nicholas v. Brooks, Civil Action No. 4:06-CV-1265,

pursuant to Federal Rule of Civil Procedure 42(a).

Case 4:06-cv-01265-ARC-KH Document 40 Filed 10/16/06 Page 4 of 5
3. The Clerk of Court shall CLOSE the file in Civil Action No. 4:06-CV-1849. 

 /s/ A. Richard Caputo 

 A. RICHARD CAPUTO

 United States District Judge

Case 4:06-cv-01265-ARC-KH Document 40 Filed 10/16/06 Page 5 of 5