MAYHEW v. FOLINO et al

Filing 7

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED THE OBJECTIONS ARE OVERRULED. THE PETITION SHALL BE PLACED IN SUSPENSE PENDING PETITIONER'S EXHAUSTION OF STATE COURT REMEDIES. IT IS FURTHER ORDERED THAT PETITIONER AND RESPONDENT S NOTIFY THE COURT WITHIN THIRTY (30) DAYS OF THE CONCLUSION OF THE STATE APPELLATE PROCEEDINGS SO THAT THE HABEAS PETITION MAY PROCEED IN THIS COURT. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 11/6/13. 11/6/13 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES OF AMERICA
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HASSEN MAYHEW

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v.
LOUIS S. FOLINO, et al.

CIVIL ACTION

NO. 13-3658

ORDER
AND NOW, this 6th day of November, 2013, upon
consideration of the plaintiff’s Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody (Docket
#1), the Report and Recommendation (“R&R”) of Magistrate Judge
Elizabeth T. Hey, and the objections to the R&R of the
petitioner, IT IS HEREBY ORDERED that the R&R is APPROVED and
ADOPTED and the objections are OVERRULED.

The petition shall be

placed in suspense pending the petitioner’s exhaustion of state
court remedies.
IT IS FURTHER ORDERED that the petitioner and the
respondents shall notify the Court within thirty days of the
conclusion of the state appellate proceedings so that the habeas
petition may proceed in this court.

There is no basis for a

certificate of appealability.
The Court appreciates the petitioner’s objections based
on the fact that the PCRA petition has been pending for some time
but it appears that the trial court has been holding the
plaintiff’s PCRA petition awaiting the Pennsylvania Supreme

Court’s decision in Commonwealth v. Cunningham, No. 38 EAP 2012
(Pa., argued Sept. 12, 2012 and resubmitted on briefs on August
13, 2013), in which the court has been asked to determine whether
Miller applies retroactively to cases that were final when Miller
was decided.

BY THE COURT:

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

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