LoDuca v. McGinley

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH LODUCA, : Civil No. 4:23-CV-1444

:

Petitioner, :

:

v. :

: (Magistrate Judge Carlson)

THOMAS MCGINLEY, et al., :

:

Respondents. :

MEMORANDUM OPINION

I. Factual and Procedural Background

Joseph LoDuca is a prolific pro se petitioner who has filed multiple post-

convictions motions, petitions and appeals in numerous state and federal courts. The

sheer volume of these filings presents a challenge for courts in assessing LoDuca’s

claims, a challenge which is compounded by LoDuca’s frequent reliance upon a

stream of consciousness writing style which assumes a vast body of pre-existing

knowledge on the part of the reader.

So it is here.

On August 30, 2023, LoDuca filed a petition for writ of habeas corpus with

this court. (Doc. 1). In this petition, LoDuca indicated that he was incarcerated on

August 18, 2020, when he received notice of a bench warrant lodged against him as

a parole violator. (Id. at 5). Alleging that he did not receive an initial hearing on this

bench warrant within 72 hours, as required by state practice, LoDuca insists that his

2020, less than one month later, was a nullity and he must be released. (Id.)

While this petition seeking extraordinary habeas corpus relief has been

pending, LoDuca has filed a second motion which demands a different type of

extraordinary relief. Specifically, LoDuca filed a motion requesting that the

Department of Corrections be enjoined from transferring him from his current place

of incarceration, the apparent prison of his choice. (Doc. 8).

Finally, on January 25, 2024, LoDuca filed a third motion, (Doc. 21), styled as

a motion to supplement his response to the respondents’ filings. This pleading,

however, reflected a fundamental confusion regarding the nature of this case. LoDuca

initially filed this action as a petition for writ of habeas corpus, seeking his release

from state custody. LoDuca’s latest filing, however, demands a non-negotiable sum

of $10,000 in damages based upon what LoDuca asserts was a failure to provide him

with sufficient access to a law library. Thus, LoDuca’s case, which began as a habeas

corpus petition, is now transmogrifying into a damages lawsuit.

This petition for writ of habeas corpus and these accompanying motions for a

temporary restraining order and for damages are ripe for resolution. For the reasons

set forth below, the petition and motions will be denied.

At the outset we note that LoDuca advances these claims largely in the abstract

without the benefit of any supporting factual detail. However, a review of state court

dockets discloses that in 2019 LoDuca was charged in Snyder County with drug

CP-55-CR-0000308 and 0000309-2019.1 In January of 2020, LoDuca was convicted

of terroristic threats and drug possession following the entry of nolo contendere pleas.

Eight months later, in August of 2020, LoDuca incurred new state drug

changes in Dauphin County, Pennsylvania. Commonwealth v. LoDuca, Cr. No. CP-

22-CR-0001345-2021. These charges ultimately were resolved in July of 2021

through a guilty plea conviction.

From the existing court records it appears that a bench warrant issued for

LoDuca in his Snyder County cases in July of 2020, citing LoDuca for violating his

state parole. Commonwealth v. LoDuca, Cr. No. CP-55-CR-0000308-2019. LoDuca

then began filing a spate of pro se motions in state court. Initially it appears that the

state courts endeavored to schedule a bench warrant hearing in LoDuca’s case,

however, the state court docket reflects the filing of a motion on September 3, 2020,

to continue LoDuca’s revocation hearing. LoDuca then proceeded to a revocation

hearing on September 11, 2020, at which time his release was revoked and he was

re-sentenced to 1-to-2 years’ incarceration.

What then followed was a bewildering array of pro se post-conviction motions,

petitions and appeals. Commonwealth v. LoDuca, Cr. No. CP-55-CR-0000308-2019

1 This factual narrative is taken from the state court dockets which can be accessed at

https://ujsportal.pacourts.us/CaseSearch. We take judicial notice of these state court

records.

lodged by LoDuca in addition to multiple motions filed with the trial court. LoDuca’s

state court filings and appeals have continued unabated even after LoDuca filed this

petition for writ of habeas corpus in federal court. For example, as recently as

December 2023, while the petition was pending, LoDuca was also lodging notices of

appeal with the Pennsylvania Superior Court, appealing from various state trial court

rulings in his criminal case. Id. at 43. Given this active, ongoing state court litigation,

it is beyond dispute that LoDuca has not yet fully exhausted his post-conviction

claims in state court.

In light of this immutable fact, we are reminded that one of the statutory

prerequisites to a state prisoner seeking habeas corpus relief in federal court is that

the prisoner must “exhaust[] the remedies available in the courts of the State.” 28

U.S.C. § 2254(b)(1)(A). Therefore, the instant case presents a model of an

unexhausted petition since the petitioner seeks federal habeas corpus review of a state

court conviction without having first fully exhausted his state court remedies. In light

of the fact that this is undeniably an unexhausted federal habeas corpus petition, the

question before this Court is how best to address what is currently a premature and

procedurally flawed petition. For the reasons set forth below, that this petition will

be dismissed.

We also note that the current petition, which decries an alleged failure to

promptly conduct a preliminary hearing on a state parole violation, does not present

we conclude that LoDuca is not entitled to choose his place of confinement. Finally,

we note that LoDuca may not pursue a damages claim under the guise of a federal

habeas corpus petition, as he attempts to do in his latest filing. Therefore, his motion

for a temporary restraining order and for damages will also be denied.

II. Discussion

A. Habeas Corpus Standards of Review

Rule 4 of the Rules Governing Section 2254 Cases in the United States District

Courts provides in pertinent part: “If it plainly appears from the petition and any

attached exhibits that the petitioner is not entitled to relief in the district court, the

judge must dismiss the petition and direct the clerk to notify the petitioner.” Rule 4

of the Rules Governing Section 2254 Cases in the United States District Court.

In order to obtain federal habeas corpus relief, a state prisoner seeking to

invoke the power of this Court to issue a writ of habeas corpus must satisfy the

standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in [sic]

behalf of a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the Constitution

or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be granted

unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of

the State;

(2) An application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.

28 U.S.C. § 2254 (a) and (b).

As this statutory text implies, state prisoners must meet exacting substantive

and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a

petition must satisfy exacting substantive standards to warrant relief. Federal courts

may “entertain an application for a writ of habeas corpus in [sic] behalf of a person

in custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the

Constitution or laws or treaties of the United States,” section 2254 places a high

threshold on the courts. Typically, habeas relief will only be granted to state prisoners

in those instances where the conduct of state proceedings led to a “fundamental defect

which inherently results in a complete miscarriage of justice” or was completely

inconsistent with rudimentary demands of fair procedure. See, e.g., Reed v. Farley,

512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will

not entitle a petitioner to section 2254 relief, absent a showing that those violations

are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d

394, 401-02 (3d Cir. 2004).

Furthermore, state prisoners seeking relief under section 2254 must also satisfy

a requirement that the petitioner “has exhausted the remedies available in the courts

of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). Section

2254’s exhaustion requirement calls for total exhaustion of all available state

remedies. Thus, a habeas petitioner “shall not be deemed to have exhausted the

remedies available in the courts of the State, within the meaning of this section, if he

has the right under the law of the State to raise, by any available procedure, the

question presented.” 28 U.S.C. § 2254(c). In instances where a state prisoner has

failed to exhaust the legal remedies available to him in the state courts, federal courts

typically will refuse to entertain a petition for habeas corpus. See Whitney v. Horn,

280 F.3d. 240, 250 (3d Cir. 2002).

This statutory exhaustion requirement is rooted in principles of comity and

reflects the fundamental idea that the state should be given the initial opportunity to

pass upon and correct alleged violations of the petitioner’s constitutional rights.

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). As the Supreme Court has aptly

observed: “a rigorously enforced total exhaustion rule” is necessary in our dual

system of government to prevent a federal district court from upsetting a state court

decision without first providing the state courts the opportunity to correct a

constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring

exhaustion of claims in state court also promotes the important goal of ensuring that

a complete factual record is created to aid the federal courts in their review of a

petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of

showing that all of the claims alleged have been “fairly presented” to the state courts,

and the claims brought in federal court must be the “substantial equivalent” of those

presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231

(3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner

cannot avoid this responsibility merely by suggesting that he is unlikely to succeed

in seeking state relief, since it is well-settled that a claim of “likely futility on the

merits does not excuse failure to exhaust a claim in state court.” Parker v. Kelchner,

429 F.3d 58, 63 (3d Cir. 2005).

When presented with a plainly unexhausted petition, like the instant petition,

the court has several courses available to it. First, the court can dismiss the petition

without prejudice, so that the petitioner can either return to state court and totally

exhaust his claims, or proceed in federal court on a petition which raises only wholly

exhausted issues. Rose v. Lundy, 455 U.S. 509 (1982). This total exhaustion

approach facilitates the important goals of federalism and comity that are essential to

the exhaustion rule, and allows for complete legal and factual development of these

cases in the state legal system before petitions are presented in federal court.

However, because strict compliance with this total exhaustion rule can create

procedural dilemmas for some petitioners, the courts have adopted another procedure

which may be employed in a limited number of cases, a “stay and abeyance”

remedies by the petitioner. Rhines v. Weber, 544 U.S. 269 (2005). Yet, while granting

a stay and abeyance is an available procedure, it is not a preferred course of action in

these cases. Because a “stay and abeyance” procedure, if used too frequently, can

undermine the policies favoring prompt and orderly resolution of state habeas

petitions, the Supreme Court has held that:

[S]tay and abeyance should be available only in limited circumstances.

Because granting a stay effectively excuses a petitioner’s failure to

present his claims first to the state courts, stay and abeyance is only

appropriate when the district court determines there was good cause for

the petitioner’s failure to exhaust his claims first in state court.

Moreover, even if a petitioner had good cause for that failure, the district

court would abuse its discretion if it were to grant him a stay when his

unexhausted claims are plainly meritless.

Rhines v. Weber, 544 U.S. at 277. Therefore, in order to qualify for a stay and

abeyance, a petitioner should “satisf[y] the three requirements for a stay as laid out

in Rhines: good cause, potentially meritorious claims, and a lack of intentionally

dilatory litigation tactics.” Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009).

B. LoDuca’s Habeas Corpus Petition Should Be Dismissed

1. The Petition is Not Fully Exhausted

In the instant case, it is apparent that the exhaustion doctrine applies and bars

consideration of this petition since it is evident that LoDuca is still actively litigating

various post-conviction claims in state court. Indeed, given the immutable fact of this

9

model of an unexhausted petition which the court ordinarily should dismiss without

prejudice so the petitioner can return to state court and totally exhaust these claims.

Rose v. Lundy, 455 U.S. 509 (1982). Further, in this case, we will dismiss this

petition, in lieu of engaging in any stay and abeyance, because we find that this

petition fails to “satisf[y] the three requirements for a stay as laid out [by the Supreme

Court] in Rhines: good cause, potentially meritorious claims, and a lack of

intentionally dilatory litigation tactics.” Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir.

2009).

Quite the contrary, LoDuca makes no showing of good cause for the erratic

legal course he has elected to follow, and his state court litigation history has been

marked by procedurally irregular and inappropriate missteps. Nor can LoDuca avoid

this outcome by arguing that exhaustion of these state remedies on his part should be

excused due to the futility of exhausting those state remedies. Because of the strong

policies favoring exhaustion of state remedies, petitioners who seek to be excused

from this requirement must make an exacting showing to forego this exhaustion

requirement. Lee v. Stickman, 357 F.3d 338, 341 (3d Cir. 2004); see also Cristin v.

Brennan, 281 F.3d 404, 411 (3d Cir. 2002) (refusing to excuse exhaustion in the face

of 27-month delay). As a practical matter, the exhaustion requirement will only be

excused in extreme cases where “inexcusable or inordinate delay by the state in

processing claims for relief may render the state remedy effectively unavailable.”

Here, the state court dockets reveal that the state courts have consistently

endeavored to promptly address LoDuca’s voluminous filings in his state criminal

case. Moreover, any delays experienced by LoDuca have been a product of his erratic

pleading practice, which appears to have inundated those courts with multiple

motions and appeals. Therefore, we cannot say that “inexcusable or inordinate delay

by the state in processing claims for relief may render the state remedy effectively

unavailable,” Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986), and the

petitioner has not provided sufficient justification or excuse for this failure to exhaust

his state legal remedies on all of his legal claims which would warrant foregoing the

exhaustion requirement that is plainly prescribed by law. Therefore, the failure to

exhaust these state remedies cannot be excused, and his petition for writ of habeas

corpus will be dismissed.

2. The Petition Fails on its Merits.

In any event, to the extent that it can be understood, LoDuca’s petition fails on

its merits. The gravamen of LoDuca’s petition can be simply stated: Alleging that he

did not receive a prompt initial hearing on the parole violation bench warrant that was

lodged against him in August of 2020, as required by state practice, LoDuca insists

that his subsequent sentencing in this matter, which allegedly took place on

September 11, 2020, less than one month later, was a nullity and he must be released.

The state court docket in LoDuca’s case, however, tells a somewhat different story.

cases in July of 2020, citing LoDuca for violating his state parole. Commonwealth v.

LoDuca, Cr. No. CP-55-CR-0000308-2019. LoDuca then began filing a spate of pro

se motions in state court. Initially it appears that the state courts endeavored to

schedule a bench warrant hearing in LoDuca’s case in August 2020, however, the

state court docket reflects the filing of a motion on September 3, 2020, to continue

LoDuca’s revocation hearing. LoDuca then proceeded to a revocation hearing on

September 11, 2020, at which time his release was revoked and he was re-sentenced

to 1-to-2 years’ incarceration.

In the past, convicted state parole or probation violators like LoDuca have

invited courts to vacate their revocation sentences based upon brief delays in

conducting a preliminary hearing which allegedly violated state law. Yet, such

requests, while made in the past, have not been embraced by the courts. Bell v. Ctr.,

No. 09 CIV.7218 PKC GWG, 2010 WL 2000526, at *7 (S.D.N.Y. May 18, 2010),

report and recommendation adopted sub nom. Bell v. Warden Anna M. Kross Ctr.,

No. 09 CIV 7218 (PKC), 2010 WL 2812981 (S.D.N.Y. July 15, 2010); U. S. ex rel.

Williams v. Russell, 264 F. Supp. 505, 505 (E.D. Pa. 1967). In rejecting these claims

courts have relied upon several fundamental truths. First, it is well settled that:

To the extent that [the petitioner]'s claim relies upon state law, it must

be denied because violations of state law are not cognizable on habeas

review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475,

116 L.Ed.2d 385 (1991) (“federal habeas corpus relief does not lie for

errors of state law”); Vasquez v. Walker, 2004 WL 594646, at *4

reviewable by federal habeas courts”).

Bell v. Ctr., 2010 WL 2000526, at *7. Therefore, LoDuca cannot rely upon some

alleged violations of state procedural rules to assert a federal claim warranting habeas

corpus relief.

In addition, this petition fails as a matter of constitutional law for at least two

other reasons. At the outset, it is apparent that the delay in conducting a revocation

hearing was brief and discrete, encompassing less than one month. Moreover, the

state court docket seems to reflect that this delay was, in part, a product of LoDuca’s

own filings, which included a motion to continue the revocation hearing. On these

facts, this brief delay simply does not rise to the level of a constitutional infraction

since:

The Supreme Court has held only that a parolee has a due process right

to a preliminary hearing held “as promptly as convenient” after the

execution of the warrant. Morrissey, 408 U.S. at 485. The Supreme

Court has not specified what length of time would violate due process.

Id. (rejecting claim based upon 18-day delay in conducting preliminary hearing). In

this case, the state court record discloses that LoDuca’s revocation proceedings were

addressed, and resolved, within approximately thirty days. Moreover, at least part of

that delay was due to a defense request to continue the revocation proceedings. On

these facts, we find hat the revocation hearing was conducted as promptly as

convenient, which is all that the Constitution requires.

LoDuca violated his state release—a finding which LoDuca does not appear to

challenge in this petition—it cannot be said that the petitioner has suffered any

cognizable prejudice which would warrant post-conviction relief. This, too, is a fatal

flaw in this petition since it is clear that:

“Even if a constitutional error occurs during a preliminary hearing, relief

is warranted only if the petitioner shows ‘that he was subsequently

deprived of a fair trial or was otherwise prejudiced by reason of the

error.’ “ Ratliff v. Martel, 2012 WL 3263935, *4 (S.D.Cal., Aug. 9,

2012) (quoting People v. Stewart, 33 Cal.4th 425, 462 (2004)).

Likewise, even “the deprivation of a preliminary hearing would not

require the vacating of a subsequent conviction.” Davin, 2008 WL

3049853 at *1 (citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975)

(stating “a conviction will not be vacated on the ground that the

defendant was detained pending trial without a determination of

probable cause”) and United States v. Studley, 783 F.2d 934, 937 (9th

Cir.1986) (affirming conviction despite violation of statutory probable

cause requirement)). “Accordingly, any alleged evidentiary

insufficiency at a preliminary hearing, or other alleged errors occurring

in relation to a preliminary hearing, cannot provide a basis for habeas

relief with respect to a subsequent conviction or sentence.” Id. at *1

(citing Colbert v. Yates, 2008 WL 942842, *5 (C.D.Cal. Apr. 4, 2008)

(claimed inability to cross-examine a witness at the preliminary hearing

fails to state a claim cognizable on federal habeas corpus); Hill v.

Wolfenbarger, 2005 WL 3693204, *4 (E.D.Mich. Nov. 22, 2005) (claim

of insufficiency of the evidence at a preliminary examination “raises a

matter of state law and cannot form a basis for federal habeas corpus

relief”); Fowler v. Leeke, 509 F.Supp. 544, 548 (D.S.C. Sept. 14, 1979)

(“the claim that petitioner did not receive a preliminary hearing is not a

federal issue”)).

Viltz v. McEwen, No. 12CV1494-MMA BLM, 2013 WL 5775337, at *16 (S.D. Cal.

Oct. 25, 2013).

demonstrable prejudice, LoDuca’s habeas corpus petition also fails on its merits.

3. LoDuca’s Motion for Temporary Restraining Order Will Be

Denied

In addition, we note that LoDuca has filed a motion seeking to enjoin prison

officials from transferring him to another state correctional facility. (Doc. 8). This

motion warrants only brief consideration. As we have noted in the past, this claim

plainly fails as a matter of law:

In this regard, in the past, inmates have frequently sought preliminary

injunctive relief similar to that demanded . . . here, inviting courts to

regulate inmate transfers. Yet such requests, while frequently made,

have rarely been embraced by the courts. As we have previously noted

on this score:

[I]t is well established that the United States Constitution

does not confer any right upon an inmate to any particular

custody or security classification. Moody v. Daggett, 429

U.S. 78, 88, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976);

Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 49

L.Ed.2d 466 (1976). Thus, inmates do not have a liberty

interest in retaining or receiving any particular security or

custody status “[a]s long as the [challenged] conditions or

degree of confinement is within the sentence imposed ...

and is not otherwise violative of the Constitution.” Id.

Similarly, it has long been recognized that prison transfer

decisions, standing alone, do not constitute cruel and

unusual punishment in violation of the Eighth Amendment

to the Constitution. See. e.g., Hassain v. Johnson, 790 F.2d

1420 (9th Cir. 1986); Serrano v. Torres, 764 F.2d 47 (1st

Cir. 1985). Indeed, even inmate transfers to facilities far

from their homes do not rise to the level of cruel and

unusual punishment. See, e.g., Gov't of Virgin Island v.

Gereau, 592 F.2d 192 (3d Cir. 1979) (transfer from Virgin

Islands to mainland); Rodriguez–Sandoval v. United

Rico to Atlanta). In short, well-settled law establishes that

prisoners have no inherent constitutional right to placement

in any particular prison, to any security classification, or to

any particular housing assignment. See Olim v.

Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 75

L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215 225,

96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye, 427 U.S.

at 242; Bulger v. U.S. Bureau of Prisons, 65 F.3d 48

(5thCir. 1995); Marchesani v. McCune, 531 F.2d 459 (10th

Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 127, 50 L.Ed.2d

117 (1976).

Smithson v. Frederico, No. 1:14-CV-2073, 2015 WL 1608023, at *5

(M.D. Pa. Jan. 7, 2015), report and recommendation adopted sub nom.

Smithson v. Federico, No. 1:14-CV-2073, 2015 WL 3405022 (M.D. Pa.

May 26, 2015). Simply put, as a legal matter [a prisoner] has no

constitutional right to choose his prison. Therefore, he may not use a

motion for preliminary injunction as a vehicle to choose his place of

confinement, or forbid a prison transfer. . . .

Cummings v. Weller, No. CV 1:22-1119, 2023 WL 3407165, at *3–4 (M.D. Pa. Feb.

21, 2023), report and recommendation adopted, No. CV 1:22-1119, 2023 WL

2772130 (M.D. Pa. Apr. 4, 2023). Therefore, this request for extraordinary injunctive

relief which would, in effect, allow LoDuca to choose his prison fails as a matter of

law and will be denied.

4. LoDuca’s Demand for $10,000 in Damages is Inappropriate.

Finally, LoDuca’s latest filing which demands a non-negotiable sum of

$10,000 in damages based upon what LoDuca asserts was a failure to provide him

with sufficient access to a law library, (Doc. 21), confuses and conflates two very

lawsuit.

As we have noted in the past:

The writ of habeas corpus, one of the protections of individual liberties

enshrined in our Constitution, serves a specific, and well-defined,

purpose. The writ of habeas corpus exists to allow those in the custody

of the state to challenge in court the fact, duration and lawfulness of that

custody. As the United States Court of Appeals for the Third Circuit has

aptly noted: “The underlying purpose of proceedings under the ‘Great

Writ’ of habeas corpus has traditionally been to ‘inquire into the legality

of the detention, and the only judicial relief authorized was the discharge

of the prisoner or his admission to bail, and that only if his detention

were found to be unlawful.’ ” Powers of Congress and the Court

Regarding the Availability and Scope of Review, 114 Harv. L.Rev.

1551, 1553 (2001). Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir.2002).

However, there is a necessary corollary to this principle, one which has

long been recognized by the courts; namely, “[i]f a ... prisoner is seeking

[other relief], he is attacking something other than the fact or length of

his confinement, and he is seeking something other than immediate or

more speedy release-the traditional purpose of habeas corpus. In [such

cases], habeas corpus is not an appropriate or available federal remedy.”

Preiser v. Rodriguez, 411 U.S. 475, 494, 93 S.Ct. 1827, 36 L.Ed.2d 439

(1973).

Rodriguez v. Ct. of Common Pleas of Lackawanna Cnty., No. 1:12-CV-830, 2012

WL 2115729, at *3 (M.D. Pa. May 10, 2012), report and recommendation adopted,

No. 1:12-CV-830, 2012 WL 2115415 (M.D. Pa. June 11, 2012). Therefore, a habeas

petitioner like LoDuca simply “is not entitled to convert a habeas corpus petition into

a vehicle for obtaining compensatory damages.” Albert-Diaz v. Scism, No. 1:10-CV-

2457, 2011 WL 950137, at *9 (M.D. Pa. Jan. 20, 2011), report and recommendation

Accordingly, to the extent that he seeks damages, LoDuca’s:

recourse, if any, would be through a civil rights action brought under 42

U.S.C. § 1983 challenging this prison placement decision. However,

because the filing requirements for habeas and § 1983 actions differ, and

the two types of actions raise different issues in terms of procedural

requirements and substantive standards, it would not be appropriate to

simply construe this pleading, which was clearly designated as a habeas

petition, as a § 1983 action.

Rodriguez, 2012 WL 2115729, at *4. Instead, we will dismiss this petition without

prejudice to the Petitioner later filing a separate action under § 1983 if he chooses to

do so.

III. Conclusion

Accordingly, for the foregoing reasons, upon consideration of this Petition for

Writ of Habeas Corpus, (Doc. 1), the Petition will be DENIED, and since the

petitioner has not demonstrated “a substantial showing of the denial of a

constitutional right.” 28 U.S.C § 2253 (c)(2); see also Buck v. Davis, 137 S. Ct. 773-

75 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel,

529 U.S. 473, 484 (2000) a certificate of appealability will not issue. In addition, the

petitioner’s motion for temporary restraining order, (Doc. 8), and motion seeking

damages, (Doc. 21), will also be DENIED.

An appropriate order follows.

S/Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: February 5, 2024