                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2006

Mayer v. Atty Gen PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5468




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"Mayer v. Atty Gen PA" (2006). 2006 Decisions. Paper 885.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/885


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CPS-219                                                      NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-5468
                                  ________________

                                     TROI MAYER

                                            v.

          THOMAS CORBETT, PENNSYLVANIA ATTORNEY GENERAL;
           GWENDOLYN T. MOSLEY, DEPUTY ATTORNEY GENERAL

                                      Troy J. Mayer,

                                            Appellant

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                           (M.D. Pa. Civ. No. 05-cv-01217)
                      District Judge: Honorable Sylvia H. Rambo
                    _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  May 11, 1006

            Before: BARRY, SMITH AND NYGAARD, CIRCUIT JUDGES

                                  (Filed June 16, 2006)
                                  _________________

                                      OPINION
                                  _________________

PER CURIAM

      Troi Mayer appeals pro se from the order of the United States District Court for the

Middle District of Pennsylvania dismissing his habeas corpus petition. Mayer, who is
currently incarcerated at the State Correctional Institution at Greene, was convicted in

1981 of murder and other crimes in Pennsylvania. Mayer’s direct appeal and initial

collateral proceedings in state court were unsuccessful, and his first federal habeas corpus

petition, filed pursuant to 28 U.S.C. § 2254, was denied on the merits in 1994. Mayer

filed a second petition in state court pursuant to Pennsylvania’s Post Conviction Relief Act

(“PCRA”) and was granted relief when the PCRA court ordered a new trial in July 2002.

The Commonwealth appealed, however, and the Pennsylvania Superior Court vacated the

PCRA court’s order. Mayer’s petition for review by the Pennsylvania Supreme Court was

denied.

       In June 2005, Mayer filed this habeas petition in the District Court pursuant to 28

U.S.C. § 2241, claiming that the Pennsylvania Superior Court lacked jurisdiction over his

PCRA proceedings, because the Commonwealth’s notice of appeal was filed late. Upon

the recommendation of the Magistrate Judge, the District Court dismissed Mayer’s petition

without prejudice to his filing a new petition pursuant to 28 U.S.C. § 2254.1 Mayer timely

appealed and has filed a response to our notice advising him that the appeal would be

listed for possible summary action. Respondents have notified us that they will not be

          1
        We note that such filing is unnecessary. Several months prior to filing this § 2241
petition, Mayer filed an application pursuant to 28 U.S.C. § 2244 seeking authorization
from this court to file a second § 2254 petition containing the same claims presented in
the § 2241 petition. We denied this application as unnecessary and directed that the
proposed § 2254 petition be transferred to the appropriate District Court. See In Re:
Mayer, No. 05-2300 (order entered October 17, 2005). The petition was transferred to the
United States District Court for the Eastern District of Pennsylvania (Civ. No. 05-cv-
06017) and remains pending there. We also note that Mayer is represented by counsel in that
proceeding.

                                              2
participating in the appeal.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. After a careful review

of the record, we conclude that the appeal presents “no substantial question.” We will,

therefore, summarily affirm the District Court’s judgment pursuant to Third Cir. LAR 27.4

and I.O.P. 10.6.

       On its face, Mayer’s § 2241 petition challenges the validity of the PCRA

proceedings in the Superior Court and appears to be grounded in Mayer’s belief that his

current custody resulted from the Superior Court’s order. However, as the District Court

observed, Mayer’s current custody stems from his underlying state conviction, which was

validated by the Superior Court’s order vacating his PCRA relief. Thus, Mayer’s appellate

PCRA proceedings did not alter the fact that he remains in custody “pursuant to the

judgment of a State court,” making § 2254 the proper vehicle for his claims. See 28

U.S.C. § 2254(a); Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001).

       For these reasons, we agree with the District Court’s refusal to entertain Mayer’s

petition and will, therefore, summarily affirm the District Court’s judgment. Mayer’s

motion for the appointment of counsel is denied, as Mayer has not made a threshold

showing that his appeal has arguable merit in fact and law. See Tabron v. Grace, 6 F.3d

147, 155 (3d Cir. 1993).2




        2
       In view of today’s decision, Mayer’s request in his summary action response to
consolidate this appeal with his other pending civil appeals is denied.
