ELLIOTT v. COURT OF COMMON PLEAS et al

Filing 41

ORDERED THAT THE PETITIONER'S OBJECTIONS ARE OVERRULED; REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; THE CLERK OF COURT SHALL CLOSE THIS CASE FOR ALL PURPOSES. SIGNED BY CHIEF JUDGE LAWRENCE F. STENGEL ON 10/26/17. 10/27/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NATHANIEL L. ELLIOTT,
Petitioner

:
:
:
vs.
:
:
COURT OF COMMON PLEAS, et al., :
Respondents
:

CIVIL ACTION

NO. 14-5860

ORDER
AND NOW, this 26th day of October, 2017, upon careful and independent
consideration of the petition for writ of habeas corpus and attachments; the Petitioner’s
affidavit/brief; the Respondents’ response thereto; the Petitioner’s reply brief; and all
available state court records; and after review of the thorough and well-reasoned Report
and Recommendation of United States Magistrate Judge David R. Strawbridge, IT IS
HEREBY ORDERED that:
1. The Petitioner’s Objections are OVERRULED; 1
2. The Report and Recommendation is APPROVED and ADOPTED;
3. The petition for writ of habeas corpus is DISMISSED;
1

The petitioner has filed lengthy Objections and an “Amendment of Objections” to Judge
Strawbridge’s Report and Recommendation. See Document #37. Upon de novo review, I find
that these Objections are meritless. Notwithstanding the petitioner’s many challenges to the
R&R, there is one fact which cannot be challenged, and that is that his claims are unexhausted.
The petitioner failed to appeal the Parole Board’s decision to the Commonwealth Court of
Pennsylvania or to the Supreme Court of Pennsylvania. Because he is no longer able to bring a
timely claim in state court, I must find that Judge Strawbridge properly found that the
petitioner’s claims are procedurally defaulted. Finally, there is no basis to excuse this procedural
default. The Petitioner has not shown a cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrated that failure to consider the claims would
result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750-51
(1991). Accordingly, I will approve and adopt Judge Strawbridge’s Report and
Recommendation, and dismiss this petition.

4. A certificate of appealability SHALL NOT issue, in that the Petitioner has not
made a substantial showing of the denial of a constitutional right, or demonstrated that
reasonable jurists would debate the correctness of this ruling. See 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Clerk of Court shall mark this case CLOSED for all purposes.
BY THE COURT:

/s/ Lawrence F. Stengel
LAWRENCE F. STENGEL, C. J.

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