TYSON v. BEARD

Filing 158

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITIONER'S OBJECTIONS ARE OVERRULED; THIS MATTER IS DISMISSED WITHOUT AN EVIDENTIARY HEARING; PETITIONER'S MOTIONS (DOC. NOS. 61, 106, 109. AND 123) ARE DENIED; THERE IS NO BASIS FOR THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 8/27/13. 8/28/13 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRIAN TYSON

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v.
JEFFREY BEARD

CIVIL ACTION

NO. 06-290

ORDER
AND NOW, this 27th day of August, 2013, upon careful
and independent consideration of the petition for writ of habeas
corpus, and after review of the Report and Recommendation of
Magistrate Judge Arnold C. Rapoport, and the objections to said
Report and Recommendation (“R&R”), IT IS HEREBY ORDERED that:
1.

The Report and Recommendation is APPROVED and
ADOPTED;

2.

The objections are OVERRULED;

3.

This matter is dismissed without an evidentiary
hearing;

4.

Petitioner’s Motion for Summary Judgment (Docket
#61), Motion for Correct Application of Rule 56
and/or Entry of Summary Judgment on Threshold
Retroactivity Claim (Docket #106), Motion to Deem
Summary Judgment Motion Unopposed and for Entry of
Summary Judgment (Docket #109) and Motion for
Summary Judgment (Docket #123) are DENIED;

5.

There is no basis for the issuance of a
certificate of appealability.

Since the Magistrate Judge issued his R&R, the
petitioner was released on parole on July 29, 2012.

The Court

notes that this fact does not prevent the petitioner from
maintaining his habeas petition.

An individual remains in state

“custody” and can invoke the federal court’s habeas jurisdiction
when he is subjected to restraints on liberty other than
incarceration.

See Jones v. Cunningham, 371 U.S. 236, 242

(1963); Leyva v. Williams, 504 F.3d 357, 363 (3d Cir. 2007).
such situation is when the individual is on parole.

One

Mabry v.

Johnson, 467 U.S. 504, 507 n.3 (1984), overruled in part on other
grounds by Puckett v. United States, 556 U.S. 129 (2009); Lee v.
Stickman, 357 F.3d 338, 342 (3d Cir. 2004).
In February 2012, Magistrate Judge Rapoport issued the
(“R&R”), recommending that the petition be dismissed with
prejudice.

The petitioner asked for numerous extensions to

obtain counsel who would file objections on his behalf.

He never

obtained counsel and filed his own objections to the R&R which
the Court has considered, as well as all the other materials.

BY THE COURT:

/s/ Mary A. McLaughlin_____
MARY A. McLAUGHLIN, J.

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