BARBER v. BURNS et al

Filing 17

ORDER THAT MAGISTRATE JUDGE HEY'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. IT IS FURTHER ORDERED THAT THE PETITION FOR HABEAS CORPUS RELIEF IS STAYED AND ALL PROCEEDINGS ARE HELD IN ABEYANCE UNTIL CONCLUSION OF PETITIONER'S STATE COURT PROCEEDINGS, ETC. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 9/9/2014. 9/10/2014 ENTERED AND COPIES MAILED TO PETITIONER AND E-MAILED.(lbs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DARIEN BARBER,
Petitioner
v.
MICHAEL OVERMYER;
THE DISTRICT ATTORNEY OF
PHILADELPHIA COUNTY; and
THE ATTORNEY GENERAL OF
THE COMMONWEALTH OF
PENNSYLVANIA,
Respondents

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Civil Action
No. 13-cv-1636

O R D E R
NOW, this 9th day of September, 2014, 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, which petition
was filed by petitioner pro se on March 19, 2013
(“Petition”); 1

(2)

Petition for Stay and Abeyance of Petitioner[‘]s
Timely Filed §[]2254 Federal Habeas Corpus
Petition, which petition for stay and abeyance was
filed by petitioner pro se on March 28, 2014;

(3)

Response to Petition for Stay and Abeyance, which
response was filed by respondents on May 2, 2014
(“Response”), together with Exhibits A through D to
the Response; and

(4)

Report and Recommendation of United States
Magistrate Judge Elizabeth T. Hey dated and filed
June 10, 2014;

1
Although the within Petition was filed with the Clerk of Court on
March 28, 2013, petitioner certified, under penalty of perjury, that he placed
the Petition in the prison mailing system on March 19, 2013. Thus, it is
treated as having been filed March 19, 2013 pursuant to the prison mailbox rule.
Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998); Rule 3(d) of the Rules
Governing Section 2254 Habeas Cases in the United States District Courts.

it appearing that no objections have been filed to the Report and
Recommendation of Magistrate Judge Hey; 2 it further appearing that
after 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 the petition for habeas
corpus relief is stayed and all proceedings are held in abeyance
until conclusion of petitioner’s state court proceedings. 3
IT IS FURTHER ORDERED that petitioner and respondents
shall notify the court within 30 days after the completion of the
state-court proceedings.

Failure to do so may result in the

dismissal of the within petition.
BY THE COURT:

/s/ JAMES KNOLL GARDNER ___
James Knoll Gardner
United States District Judge

2
Petitioner received a Notice accompanying the Report and
Recommendation stating that petitioner was required to file any objections
within fourteen days of service of the Notice and filing of the Report and
Recommendation pursuant to Rule 72.1(IV)(b) of the Local Rules of Civil
Procedure for the United States District Court for the Eastern District of
Pennsylvania. The Report and Recommendation was filed on June 10, 2014. Notice
was served June 11, 2014. Thus, any objections were required to be filed on or
before June 25, 2014. Petitioner has not filed any objections as of the date of
this Order.
3

More specifically, this federal habeas action is stayed and held in
abeyance pending final disposition by the Pennsylvania state courts of the
Second Petition for Post[-]Conviction Relief filed on October 2, 2012 by petitioner Darien Barber pro se in Commonwealth of Pennsylvania v. Darien Barber,
No. CP-51-CR-0901961-2005, in the Court of Common Pleas of Philadelphia County,
Pennsylvania. (See Exhibit C to the Response, Criminal docket entries in that
case at page 15 of 17 in the state docket, which page is page 16 of 18 in
Document 15-3 of the within federal docket; Exhibit D to the Response, a copy of
that Second Petition.)

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