UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

PIANTONI GOREA, :

:

Petitioner, : No. 4:CV-06-1089

:

vs. : Petition Filed 04/19/06

:

JOHN ASHCROFT and JAMES ZIGLAR, : (Judge Muir)

:

Respondents : (Magistrate Judge Blewitt)

ORDER

July 13, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Petitioner Piantoni Gorea is a native and citizen of Romania

currently in the custody of the United States government at the

York County Prison based upon the issuance of a final order to

deport him to his native country. In his habeas petition, Gorea

requests a stay of his removal and he seeks to defer his removal

from the United States pursuant to the United Nations Convention

Against Torture. On April 19, 2006, Gorea filed in the United

States District Court for the District of Columbia the abovecaptioned petition for writ of habeas corpus. Gorea also filed

an application to proceed in forma pauperis in that court. By

order dated April 19, 2006, the matter was transferred to this

court.

The Clerk of Court assigned this case to us and referred it

to Magistrate Judge Blewitt for processing. On June 16, 2006,

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1. To be codified at 8 U.S.C. § 1252(a)(5).

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the Magistrate Judge issued a report recommending that the

petition be denied because we do not have jurisdiction over the

claim asserted in Gorea’s petition. Magistrate Judge Blewitt

reached that conclusion after preliminarily reviewing the file

and before requiring service of Gorea’s petition upon the

Respondents. 

The time allowed for Gorea to file objections to the Report

and Recommendation expired on July 3, 2006. To this date no

objections have been filed. Magistrate Judge Blewitt’s Report

and Recommendation is ripe for disposition. When no objections

are filed to the report of a Magistrate Judge, we need only

review that report as we in our discretion deem appropriate.

Thomas v. Arn, 474 U.S. 145, 151-52 (1985). 

As a threshold matter, we will grant Gorea’s application to

proceed in forma pauperis strictly for the purposes of this

order.

The REAL ID Act of 2005 provides that the Court of Appeals

possessing jurisdiction over the initial administrative

immigration proceedings is the proper forum in which to raise

claims based on the Convention Against Torture. REAL ID Act, §

106(a)(1).1 The Court of Appeals for the Third Circuit has

commented that

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[s]ection 106(a) of the REAL ID Act, ..., amended 8 U.S.C. §

1252(a)(2) of the [Immigration and Nationality Act] by

eliminating the district courts' habeas corpus jurisdiction

(28 U.S.C. §§ 2241, 1361 and 1651) over final orders of

removal in nearly all cases. Consequently, a petition for

review filed in the appropriate court of appeals “is [now]

the sole and exclusive means for judicial review of any

cause or claim under the United Nations Convention Against

Torture and Other Forms of Cruel, Inhuman, or Degrading

Treatment or Punishment, except as provided in subsection

(e) of this section.” REAL ID Act § 106(a)(1)(B), 8 U.S.C. §

1252(a)(4).

Francois v. Gonzales, 448 F.3d 645, 647 (3d Cir. 2006). None of

the exceptions set forth in the statute apply in this case.

It is clear that the claim raised in Gorea’s habeas corpus

petition may be heard only by the Court of Appeals for the Third

Circuit. Our lack of jurisdiction over the substantive merits of

Gorea’s petition also precludes us from granting his request to

stay his removal pending a review of has habeas claim. The

conclusions we have reached thus far mirror those that we made in

two prior habeas corpus petitions filed by Gorea and handled in

this court. See Gorea v. United States District Court for the

Northern District of California, Nos. 4:CV-06-625, 4:CV-06-0804.

The final action taken in those two prior consolidated

habeas petitions was the transfer of the cases to the United

States Court of Appeals for the Third Circuit. Such a transfer

was possible because those habeas corpus petitions had been filed

before the effective date of the amendments cited above in the

REAL ID Act.

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Gorea’s instant habeas petition is in a different procedural

posture because it was filed after the effective date of those

amendments. At this point transferring Gorea’s petition to the

Court of Appeals for the Third Circuit is not an option. Our

lack of jurisdiction over Gorea’s habeas petition now requires

dismissal of the petition without prejudice to Gorea’s ability to

pursue relief in the appropriate forum.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Gorea’s application to proceed in forma pauperis is

granted strictly for the purposes of this order.

2. Gorea’s request to stay his removal is denied.

3. Magistrate Judge Blewitt’s report and recommendation is

adopted in toto.

4. Gorea’s habeas corpus petition is dismissed without

prejudice for lack of jurisdiction.

5. The Clerk of Court shall close this case.

6. Any appeal from this order will be deemed lacking in

probable cause and a certificate of appealability will

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not issue.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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