MERK v. ECKARD et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS THAT THE HONORABLE SANDRA WELLSS REPORT AND RECOMMENDATION (DOC. NO. 19 ) IS APPROVED AND ADOPTED; THE PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO. 1 ) IS DENIED; THE PETITIONER HAS NOT MADE A S UBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT AND IS THEREFORE NOT ENTITLED TO A CERTIFICATE OF APPEALABILITY, 28 U.S.C. § 2253(C)(2); AND THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED. SIGNED BY HONORABLE EDWARD G. SMITH ON 11/28/17. 11/28/17 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT MERK,
Petitioner,
v.
J.A. ECKARD, et al.,
Respondents.

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CIVIL ACTION NO. 15-5144

ORDER
AND NOW, this 28th day of November, 2017, after considering the petition for writ of
habeas corpus filed by the pro se petitioner, Robert Merk (Doc. No. 1), the respondents’
response thereto (Doc. No. 14), and United States Magistrate Judge Carol Sandra Moore Wells’s
report and recommendation (Doc. No. 19); accordingly, it is hereby ORDERED as follows:
1.

The Honorable Sandra Wells’s report and recommendation (Doc. No. 19) is

APPROVED and ADOPTED; 1
2.

The petitioner’s petition for writ of habeas corpus (Doc. No. 1) is DENIED;

3.

The petitioner has not made a substantial showing of the denial of a constitutional

right and is therefore not entitled to a certificate of appealability, 28 U.S.C. § 2253(c)(2); and
4.

The clerk of court shall mark this case as CLOSED.
BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.
1

Since neither party filed objections to Judge Wells’s report and recommendation, the court need not review the
report before adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). Nonetheless, “the better practice
is for the district judge to afford some level of review to dispositive legal issues raised by the report.” Id. As such,
the court will review the report for plain error. See Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (“In
the absence of a timely objection, . . . this Court will review [the magistrate judge’s] Report and Recommendation
for clear error.” (internal quotation marks omitted)). The court may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The court has reviewed
Judge Wells’s report for plain error and has found none.