BROWN v. WALSH et al
ORDER THAT MAGISTRATE JUDGE HART'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED IN PART AND MODIFIED IN PART. IT IS FURTHER ORDERED THAT THE PETITION FOR HABEAS CORPUS RELIEF IS DENIED WITHOUT AN EVIDENTIARY HEARING. IT IS FURTHER ORDERED T HAT BECAUSE PETITIONER HAS NOT MET STATUTORY REQUIREMENTS TO HAVE HIS CASE HEARD, AND NO REASONABLE JURIST COULD FIND THIS PROCEDURAL RULING DEBATABLE, AND BECAUSE PETITIONER FAILS TO DEMONSTRATE DENIAL OF A CONSTITUTIONAL RIGHT, A CERTIFICATE OF APPEALABILITY IS DENIED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS MATTER DISMISSED. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 10/11/16. 10/12/16 ENTERED AND COPIES MAILED TO PETITIONER, E-MAILED.(er, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SUPERINTENDENT JEROME BROWN,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
O R D E R
NOW, this 11TH day of October, 2016, upon consideration
of the following documents:
Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody1
Complaint, which complaint is undated and was
filed July 31, 2014; and
Recommendation of United States Magistrate
Judge Jacob P. Hart filed November 24, 2014;
it appearing that as of the date of this Order that no objections
have been filed to the Report and Recommendation of Magistrate
Judge Hart; it further appearing after review of this matter that
The date stamp from the Clerk of Court for the United States
District Court for the Eastern District of Pennsylvania indicates the
Mr. Brown’s petition for writ of habeas corpus was filed on December 9, 2016.
However, the petition itself indicates that it was signed by petitioner on
November 12, 2013. 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 November 12, 2013 the filing date of Mr. Brown’s original petition,
contrary to the determination of Magistrate Judge Hart. (See Report and
Recommendation at page 2).
Magistrate Judge Hart’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 Hart’s Report and
Recommendation is approved and adopted in part and modified in
IT IS FURTHER ORDERED that the petition for habeas
corpus relief is denied without an evidentiary hearing.
IT IS FURTHER ORDERED that because petitioner has not
met statutory requirements to have his case heard, and no
reasonable jurist could find this procedural ruling debatable,
and because petitioner fails to demonstrate denial of a
constitutional right, a certificate of appealability is denied.
IT IS FURTHER ORDERED that the Clerk of Court shall
mark this matter dismissed.
BY THE COURT:
/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge
As noted in footnote 1 above, I consider November 12, 2013 the
filing date of Mr. Brown’s original petition and modify page 2 of the Report
and Recommendation to reflect that change pursuant to the prison mailbox rule.
Burns, supra. This modification does not impact any factual or legal
conclusion contained in the Report and Recommendation.
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