FLUELLEN v. KERESTES et al

Filing 13

AMENDED ORDER THAT MAGISTRATE JUDGE RICE'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; IT IS FURTHER ORDERED THAT FLUELLEN'S OBJECTIONS TO MAGISTRATE JUDGE RICE'S REPORT AND RECOMMENDATION ARE OVERRULED; IT IS FURTHER ORDERED TH AT FLUELLEN'S MOTION FOR INSPECTION AND DISCOVERY IS DENIED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL CLOSE THIS MATTER FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 2/27/13. 2/27/13 ENTERED AND COPIES MAILED TO PRO SE.(fb) Modified on 2/27/2013 (fb).

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

v.
JOHN KERESTES, et al.,

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CIVIL ACTION
NO. 12-6751

AMENDED ORDER
AND NOW this 27th day of February, 2013, upon consideration of the Report and
Recommendation of Magistrate Judge Timothy R. Rice (Dkt. No. 4) and reviewing petitioner
Frank Fluellen’s objections thereto (Dkt. No. 6) and Fluellen’s Motion for Inspection and
Discovery (Dkt. No. 5), I find that Fluellen’s objections to the Report and Recommendation are a
restatement of the issues raised in his underlying petition for habeas corpus relief and are without
merit; it further appearing after de novo review of this matter that Magistrate Judge Rice’s
Report and Recommendation correctly determined the legal and factual 1 issues presented in the
petition for habeas corpus relief, IT IS ORDERED that Magistrate Judge Rice’s Report and
Recommendation is APPROVED and ADOPTED;
IT IS FURTHER ORDERED that Fluellen’s objections to Magistrate Judge Rice’s
Report and Recommendation are OVERRULED;
IT IS FURTHER ORDERED that Fluellen’s Motion for Inspection and Discovery is
DENIED.

1

I note only that there appears to be a typographical error in Judge Rice’s report that does
not change my conclusions. Judge Rice writes that “[t]he trial court sentenced Fluellen to life
imprisonment for his first-degree murder conviction.” Dkt. No. 4. ECF p. 3. It appears that
Fluellen was convicted of second-degree murder, as the Report states in all other references to
this conviction. Dkt. No. 4. ECF p. 1, 4, 5-7.

Under 28 U.S.C. § 2253(c), a certificate of appealability may issue only if “the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
Because I find that Fluellen’s objections are without merit and that reasonable jurists would not
debate the Report and Recommendation’s procedural or substantive dispositions of Fluellen’s
claims, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), he accordingly has not made a
substantial showing of the denial of a constitutional right and it is ORDERED that a certificate of
appealability will not issue.
IT IS FURTHER ORDERED that the Clerk of Court shall close this matter for statistical
purposes.

__/s/ Thomas N. O’Neill_____
THOMAS N. O’NEILL, JR., J.