SWINSON v. KERESTES et al

Filing 77

ORDERED THAT THE PETITIONERS OBJECTIONS ARE OVERRULED;THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE DAVID R.STRAWBRIDGE IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED; AND, THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 3/3/21. 3/3/21 ENTERED AND COPIES E-MAILED.(jpd, )

Case 2:14-cv-07028-TJS Document 77 Filed 03/03/21 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LYDELL SWINSON

:
:
v.
:
:
KERESTES, THE DISTRICT ATTORNEY :
OF THE COUNTY OF PHILADELPHIA
:
and THE ATTORNEY GENERAL OF THE :
STATE OF PENNSYLVANIA
:

CIVIL ACTION

NO. 14-7028

ORDER
NOW, this 3rd day of March, 2021, upon consideration of the Petition for Writ of
Habeas Corpus (Doc. No. 1), the response to the petition, the Report and
Recommendation filed by United States Magistrate Judge David R. Strawbridge
(Document No. 37), and the petitioner’s objections to the Report and Recommendation,
and after a thorough and independent review of the record, it is ORDERED that:
1.

The petitioner’s objections are OVERRULED;

2.

The Report and Recommendation of Magistrate Judge David R.

Strawbridge is APPROVED and ADOPTED;1
3.

The Petition for Writ of Habeas Corpus is DISMISSED; and,

4.

There is no probable cause to issue a certificate of appealability.

/s/ TIMOTHY J. SAVAGE J.
1

Petitioner insists that his pending habeas petition is not a second or successive petition. A closer
examination of the record reveals that he is correct.
When we transferred his petition to the Third Circuit, there had been confusion arising from his having
filed an earlier petition challenging two separate conditions for two unrelated homicides. The confusion
having been clarified, we recognize that the petition was not a second or successive one. Transferring
this petition to the Third Circuit Court of Appeals for authorization to file it as a second or successive petition
was improvident.
After a thorough review of the record, we agree with Magistrate Judge Strawbridge’s findings and
conclusions in his thorough and well-reasoned report. We conclude that the petition is barred by the
AEDPA statute of limitations and its untimeliness is not excused by statutory or equitable tolling.