IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DENNIS J. VANDERPOOL, :

:

Petitioner : CIVIL ACTION NO. 4:CV-05-1737

:

v. : (Judge Jones)

:

RALPH C. YOUMANS, et al., :

:

Respondents :

O R D E R

October 20, 2005

TO THE PETITIONER:

The Court has received a filing from you which you have entitled a habeas

petition governed by 28 U.S.C. § 2254. The purpose of this notice is to inform you

of limitations upon your right to file another habeas petition in the future if your current

petition is considered by the Court. 

Under 28 U.S.C. § 2244(b)(3)(A), no second or successive habeas petition

under § 2254 is allowed unless there are exceptional circumstances and the petitioner

has obtained permission from the appropriate court of appeals. This means that if your

current § 2254 habeas petition is considered on the merits and rejected, you no longer

have the right simply to file another § 2254 petition in this Court raising other grounds

for relief, even if you are attempting to raise grounds that you did not think of before

filing the current petition. Instead, you would have to move in the court of appeals for

Case 4:05-cv-01737-JEJ-DB Document 6 Filed 10/20/05 Page 1 of 5
a certificate allowing you to file that second § 2254 petition. Further, the grounds upon

which you could rely to obtain that certificate, and proceed with a second § 2254

petition, are limited to two extremely rare circumstances: (1) the factual predicate for

the new claim was not previously available to you by the exercise of due diligence; or

(2) there is a new rule of constitutional law that was previously unavailable to you and

made retroactive to cases on collateral review by the Supreme Court. Please consult

28 U.S.C. § 2244(b)(2) for further details. Because these grounds are so limited, in

most cases they will result in the denial of approval to file a second or successive §

2254 habeas petition, thereby barring the litigation of grounds that had not been

presented in the first § 2254 petition. Thus, you should carefully consider whether the

current habeas petition raises all grounds for relief from your conviction. If you think

it may not, you may want to withdraw it before the Court considers it. The Court will

allow you to do this now without prejudice to your right, after you have given the

petition more thought, to file another § 2254 petition. If you do decide to withdraw your

current petition with the intent of filing a comprehensive § 2254 petition in the future,

you are also advised that 28 U.S.C. § 2244(d) sets forth a one-year statute of limitations

for filing a § 2254 petition. It also specifies periods of time that are not counted toward

the limitations period. You should consult this section for when the one-year period

starts to run. The limitations deadline may affect your decision to either stand on your

current petition or file a new, comprehensive one.

Case 4:05-cv-01737-JEJ-DB Document 6 Filed 10/20/05 Page 2 of 5
NOW, THEREFORE, IT IS ORDERED THAT:

1. The Petitioner is granted leave to withdraw the current §

2254 petition without prejudice to filing another § 2254

petition raising all grounds for relief from his conviction.

 

2. The Petitioner is granted 45 days from the date of this

order to notify the Court of his decision. If he fails to do

so, the Court will rule on the current § 2254 petition as

filed. 

3. If the one-year limitations period would expire during this

45-day period, the limitations period is tolled from the

date of this order until the Petitioner’s notification is filed,

or until 45 days have elapsed, whichever is earliest. In

these circumstances, and if the Petitioner decides to file

an all-inclusive § 2254 petition raising all grounds for

relief, the Petitioner’s response mut also be accompanied

by his new § 2254 petition. 

s/ John E. Jones III 

JOHN E. JONES III

United States District Judge

Case 4:05-cv-01737-JEJ-DB Document 6 Filed 10/20/05 Page 3 of 5
IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DENNIS J. VANDERPOOL, :

:

Petitioner : CIVIL ACTION NO. 4:CV-05-1737

:

v. : (Judge Jones)

:

RALPH C. YOUMANS, et al., :

:

Respondents :

NOTICE OF ELECTION

I, , petitioner in the above-captioned action, have read the

Order of Court which accompanied this form notice. Pursuant to that order, I elect to

proceed in this action as follows:

 I have labeled my petition as a petition for writ of habeas corpus under 28

U.S.C. § 2254. I choose to have the court rule on my petition as filed.

I understand that I may be forever barred from presenting in federal court

any claim not presented in this petition. I further understand that by doing

so I lose my ability to file a second or successive petition absent

certification by the Court of Appeals, and that the potential for relief is

further limited in a second or successive petition.

 I have labeled my petition as a petition for writ of habeas corpus under 28

U.S.C. § 2254. I choose to withdraw the petition so that I may file one,

all-inclusive petition under 28 U.S.C. § 2254 within the one-year limit for

filing such a petition.

YOUR ELECTION ON THIS FORM, AS WELL AS THE FAILURE TO MAKE AN

ELECTION, WILL BE BINDING ON YOU AS IT RELATES TO YOUR

LITIGATION IN FEDERAL COURT OF ANY CLAIM RELATED TO THE

CUSTODY YOU HAVE CHALLENGED. READ CAREFULLY THE ORDER

ACCOMPANYING THIS FORM NOTICE OF ELECTION.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on . 

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(Date) (Signature of Petitioner)

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