BENNETT v. WENEROWICZ et al
Filing
17
ORDER THAT MAGISTRATE JUDGE HEY'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. IT IS FURTHER ORDERED THAT PETITIONER'S OBJECTIONS TO MAGISTRATE HEY'S REPORT AND RECOMMENDATION ARE OVERRULED. IT IS FURTHER ORDERED THAT THE PRO SE PETITION FOR HABEAS CORPUS RELIEF IS DENIED WITHOUT A HEARING. IT IS FURTHER ORDERED THAT BECAUSE PETITIONER DEMONSTRATES A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT, AND BECAUSE REASONABLE JURISTS COULD FIND THIS RULING DENYING HAB EAS CORPUS RELIEF DEBATABLE, A CERTIFICATE OF APPEALABILITY IS GRANTED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL CLOSE THIS MATTER FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 3/18/2016. 3/21/2016 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(lbs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TONY L. BENNETT,
Petitioner,
v.
MICHAEL WENEROWICZ and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents
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Civil Action
No. 2013-cv-1203
O R D E R
NOW, this 18th day of March, 2016, upon consideration
of the following documents:
(1)
Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody,
filed by petitioner Tony L. Bennett pro se on
March 6, 2013;1 together with
Memorandum in Support of Petition for
Writ of Habeas Corpus;
(2)
Response to Petition for Writ of Habeas
Corpus, which response was filed on behalf of
respondents on June 18, 2013; together with
Exhibits A through N;
(3)
1
Reply to Commonwealth’s Response to Petition
for Writ of Habeas Corpus, which reply was
filed by petitioner pro se on July 9, 2013;
Mr. Bennett’s original petition for writ of habeas corpus was
filed in this court on March 6, 2013. However, the petition itself indicates
that it was signed by petitioner on March 4, 2013 and placed in the prison
mailing system that same date. Thus, giving petitioner the benefit of the
prison mailbox rule, (See Burns v. Morton, 134 F.3d 109 (3d Cir. 1998) and
Rule 3(d) of the Rules Governing Section 2254 Cases in the United States
District Courts), I consider March 4, 2013 the filing date of Mr. Bennett’s
original petition.
(4)
Supplement to Petitioner’s Reply to
Commonwealth’s Response, which supplement was
filed by petitioner pro se on July 9, 2013;
(5)
Second supplement to petitioner’s reply to
Commonwealth’s response, which second
supplement was filed by petitioner pro se on
April 8, 2014;
(4)
Report and Recommendation of United States
Magistrate Judge Elizabeth T. Hey dated
May 29, 2014 and filed May 30, 2014;
(5)
Objections to Report and Recommendation of
Magistrate Judge filed by petitioner pro se
on June 17, 2014;
it appearing that petitioner’s objections to Magistrate Judge
Hey’s 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 Hey’s Report and Recommendation
correctly determined the legal and factual issues presented in
the petition for habeas corpus relief,
IT IS ORDERED that Magistrate Judge Hey’s Report and
Recommendation is approved and adopted.
IT IS FURTHER ORDERED that petitioner’s objections to
Magistrate Judge Hey’s Report and Recommendation are overruled.2
2
When objections are filed to a magistrate judge’s report and
recommendation, we are required to make a de novo determination of those
portions of the report, findings or recommendations made by the magistrate
judge to which there are objections. 28 U.S.C. § 636(b)(1); Rule 72.1(IV)(b)
of the Rules of Civil Procedure for the United States District Court for the
Eastern District of Pennsylvania. Furthermore, district judges have wide
latitude regarding how they treat recommendations of the magistrate judge.
(Footnote 2 continued):
-2-
IT IS FURTHER ORDERED that the pro se petition for
habeas corpus relief is denied without a hearing.
IT IS FURTHER ORDERED that because petitioner
demonstrates a substantial showing of the denial of a
constitutional right, and because reasonable jurists could find
this ruling denying habeas corpus relief debatable, a certificate
of appealability is granted.
IT IS FURTHER ORDERED that the Clerk of Court shall
close this matter for statistical purposes.
BY THE COURT:
/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge
(Continuation of footnote 2);
See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424
(1980).
Indeed, by providing for a de novo determination, rather than a de
novo hearing, Congress intended to permit a district judge, in the exercise of
the court’s sound discretion, the option of placing whatever reliance the
court chooses to place on the magistrate judge’s proposed findings and
conclusions. I may accept, reject or modify, in whole or in part any of the
findings or recommendations made by the magistrate judge. Raddatz, supra.
As noted above, I conclude that petitioner’s objections to
Magistrate Judge Hey’s Report and Recommendation are nothing more than a
restatement of the underlying claims contained in his petition for habeas
corpus. Moreover, upon review of the Report and Recommendation, together with
de novo review of this matter, I conclude that the Report and Recommendation
correctly determines the legal issues raised by petitioner.
Accordingly, I approve and adopt Magistrate Judge Hey’s Report and
Recommendation and overrule petitioner’s objections to the Report and
Recommendation.
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