MILLER v. SOUTHER et al

Filing 7

ORDER THAT: THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; MILLER'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. SEC. 2254 IS DENIED; AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 10/12/12. 10/12/12 ENTERED AND COPIES MAILED TO PRO SE.(fb) Modified on 10/12/2012 (fb).

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

GENE MILLER

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v.
RICHARD SOUTHER, et al.

CIVIL ACTION

NO. 12-1063

ORDER
AND NOW, this 12th day of October, 2012, upon
consideration of petitioner Gene Miller’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry # 1), and
after careful and independent review of the Report and
Recommendation of United States Magistrate Judge L. Felipe
Restrepo (docket entry # 5), to which Miller filed objections
(docket entry # 6), and the Court finding that:
(a)

Judge Restrepo’s well-reasoned Report and

Recommendation (“R&R”) examined all issues of fact and law
relevant to the disposition of Miller’s § 2254 petition and
concluded that his petition should be dismissed as time barred;
(b)

Though Miller filed what we will construe as

objections to the R&R, his filing does not take issue with Judge
Restrepo’s time-barred analysis;
(c)

Miller’s “objections” also append a nearly fifty-

page document entitled “Amendment/Supplement to Habeas Corpus
Petition” that, in addition to containing a Philadelphia Court of

Common Pleas criminal action caption, fails to address the
substance of Judge Restrepo’s R&R;
(d)

Moreover, it does not appear that any issues raised

in this submission were presented to Judge Restrepo nor has Miller
offered any reason why the interest of justice warrants
consideration of these issues now, see Loc. R. Civ. P. 72.1 IV(c)
(“All issues and evidence shall be presented to the magistrate
judges, and unless the interest of justice requires it, new issues
and evidence shall not be raised after the filing of the
Magistrate Judge’s Report and Recommendation if they could have
been presented to the magistrate judge.”); and
(e)

Since Miller fails to register any dispute with any

reasoning in Judge Restrepo’s R&R, he has not pointed us to
anything that warrants our review, see Loc. R. Civ. P. 72.1 IV(a)
(“[An objecting] party shall file with the Clerk of Court, and
serve on the magistrate judge and all parties, written objections
which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and
the basis for such objections.” (emphasis added));
It is hereby ORDERED that:
1.

The Report and Recommendation (docket entry # 5) is

APPROVED and ADOPTED;
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2.

Miller’s petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (docket entry # 1) is DENIED;
3.

Miller having failed to make a substantial showing

of the denial of a constitutional right, we DECLINE to issue a
certificate of appealability; and
4.

The Clerk of Court shall CLOSE this case

statistically.

BY THE COURT:

/s/ Stewart Dalzell, J.

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