NEWMAN v. GAVIN et al

Filing 13

ORDER THAT UPON CONSIDERATION OF PETITIONER'S PETITION FOR A WRIT OF HABEAS CORPUS 1 , AND AFTER REVIEW OF THE REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE MARILYN HEFFLEY 8], AND NEWMAN'S OBJECTIONS 12 , IT IS ORDERED THAT NEWMAN' S APPLICATION FOR STAY AND ABEYANCE 6 IS DENIED AS MOOT. THE OBJECTIONS ARE OVERRULED AND THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. THE PETITION IS DISMISSED AND THERE IS NO BASIS FOR ISSUANCE OF A CERTIFICATE OF APPEALABILITY. THE CLERK IS DIRECTED TO MARK THIS CASE CLOSED. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 10/17/16. 10/18/16 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(gs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HARRIS NEWMAN
v.
WAYNE J. GAVIN, et al.

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CIVIL ACTION
No. 15-213

ORDER
AND NOW, this 17th day of October, 2016, upon careful consideration of Petitioner
Harris Newman’s pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, and after
independent review of the Report and Recommendation of United States Magistrate Judge
Marilyn Heffley and Newman’s objections thereto, it is ORDERED:
1.

Newman’s Application for a Stay and Abeyance (Document 6) is DENIED as
moot 1;

1

On May 11, 2011, Newman, a former licensed physician, entered a plea of nolo contendere as
to various charges brought against him by the Bucks County District Attorney’s Office in
connection with his distribution of controlled substances. See Commonwealth v. Newman, CP09-CR-0001509-2011, Crim. Docket at 4-8. A month later, the trial court sentenced Newman to
concurrent sentences of seven and one-half to fifteen years of imprisonment on five counts of
delivery or possession with intent to deliver a controlled substance, three to ten years of
imprisonment on a sixth count of delivery or possession with the intent to deliver a controlled
substance, and concurrent sentences of ten years of probation on six counts of improper
administration of a controlled substance by a practitioner. Id.
On January 5, 2012, Newman filed a pro se petition pursuant to Pennsylvania’s Post
Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq. Id. at 13. The state court
denied his petition on April 24, 2013. Id. at 18. Newman appealed, and the Pennsylvania
Superior Court affirmed the denial on July 2, 2014. Four months later, the Pennsylvania
Supreme Court denied review. Id. at 21. On January 13, 2015, Newman filed a pro se federal
habeas petition challenging the legality of his sentence and trial counsel’s effectiveness.
Newman then filed a second PCRA petition on August 13, 2015, challenging his sentence
pursuant to the Pennsylvania Supreme Court’s June 15, 2015, decision in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015). On August 19, 2015, Newman filed in federal court an
application requesting the instant stay and abeyance of his habeas petition until his second PCRA
petition had been ruled on in state court.
On August 31, 2015, Judge Heffley issued a Report and Recommendation thoroughly
addressing each of Newman’s claims, and recommending his petition be denied and his request

2.

Newman’s objections (Document 12) are OVERRULED 2;

3.

The Report and Recommendation (Document 8) is APPROVED and ADOPTED;

4.

Newman’s Petition for Writ of Habeas Corpus (Document 1) is DISMISSED; and

5.

There is no basis for issuance of a certificate of appealability.

The Clerk of Court is DIRECTED to mark this case CLOSED.

BY THE COURT:

/s/ Juan R. Sánchez.
Juan R. Sánchez, J.

for a stay be denied because Newman’s second PCRA petition was time-barred. On March 1,
2016, at Newman’s request, the PCRA court withdrew and dismissed his second PCRA petition.
See Commonwealth v. Newman, CP-09-CR-0001509-2011, Crim. Docket at 24. Five weeks
later, Newman filed a Motion for Reconsideration of Sentence in state court, and the following
month, the court denied his motion as untimely. See id. (stating under Pa. R. Crim. P. 720(A), a
written post-sentence motion must be filed no later than ten days after imposition of sentence).
The court found that because Newman was sentenced on June 11, 2011, and he failed to allege
illegality or defect in sentencing until April 6, 2016, his motion for reconsideration of sentence
was untimely.
Because he withdrew his second PCRA petition, and his motion for reconsideration of
sentence was denied, Newman’s request for a stay is moot.
2

In his objections to the Report and Recommendation, Newman addresses only his petition for
stay and abeyance. Because his request is denied as moot, and in the absence of any other
objections, after careful and independent consideration of Newman’s petition, the Court adopts
the Report and Recommendation in full.
2