# LoDuca v. McGinley

> District Court, M.D. Pennsylvania · February 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10414271

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414271

## How later opinions describe it (automated extraction)

- stating “a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414271. Public record. Not legal advice.