OSBURNE v. KERESTES et al
ORDER THAT UPON CONSIDERATION OF PETITION FOR A WRIT OF HABEAS CORPUS 1 , RESPONDENTS' MOTION TO SUSPEND THE BRIEFING SCHEDULE 6 , THE REPORT AND RECOMMENDATION OF CHIEF MAGISTRATE JUDGE LINDA K. CARACAPPA 11 AND PETITIONER FURMAN OSBOURNE 039;S OBJECTIONS THERETO 14 , IT IS ORDERED THAT OSBOURNE'S OBJECTIONS ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. THE PETITION IS DISMISSED WITHOUT PREJUDICE. RESPONDENTS' MOTION TO SUSPEND THE BRIEFING SCHEDULE IS DENIED. THERE IS NO PROBALE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY. THE CLERK SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE GERALD J. PAPPERT ON 5/19/16. 5/20/16 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(gs)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SUP’T JOHN KERESTES, et. al.,
AND NOW, this 19th day of May, 2016, upon careful and independent consideration of
the petition for a Writ of Habeas Corpus (ECF No. 1), Respondents’ Motion to Suspend the
Briefing Schedule (ECF No. 6), the Report and Recommendation of United States Chief
Magistrate Judge Linda K. Caracappa (ECF No. 11) and Petitioner Furman Osbourne’s
(“Osbourne”) objections thereto1 (ECF No. 14), it is ORDERED that:
1. Osbourne’s Objections are OVERRULED;2
Local Rule of Civil Procedure 72.1(IV)(b) provides that a party may object to a magistrate judge’s report
“within fourteen (14) days after being served with a copy thereof.” Magistrate Judge Caracappa filed her Report and
Recommendation (R & R) on March 31, 2016. (ECF No. 11.) Copies were sent to all parties on April 1, 2016,
rendering any objections due by April 15, 2016. (ECF No. 13.) Osbourne filed his objections on April 18, 2016.
(ECF No. 14.) Even though the fourteen day period to file objections ended on April 15, 2016, Osbourne had an
additional three days to file his objections pursuant to Federal Rule of Civil Procedure 6(d) because the Clerk of
Court served the R & R upon him by mail. See, e.g., Neiman v. Astrue, No. 09-cv-4472, 2011 WL 816779, at *2
(E.D. Pa. Mar. 8, 2011) (concluding that habeas petitioner was “entitled to an additional three days under Federal
Rule of Civil Procedure 6(d) because the R & R was served on him by mail”). Accordingly, the Court conducted a
de novo review of the portions of the R & R pertaining to Osbourne’s objections. See 28 U.S.C. § 636(b)(1).
Osbourne’s first objection contends that the exhaustion requirement should be excused given that his case is
no longer “proceeding normally” in the state system. (Pet’r’s Objs. at 2, ECF No. 14.) He contends that the trial
court “fail[ed] to transmit the entire record to the Superior Court, after being placed on Notice regarding the
delinquent record on November 4, 2015.” (Id.) A review of the superior court’s docket, however, shows that it
received the trial court record on March 10, 2016—more than a month before Osbourne filed his objections. See
Commonwealth v. Furman Osbourne, No. 2432 EDA 2015, Docket (Pa. Super. Ct. Mar. 10, 2016) (Trial Court
Record Received). Osbourne also contends that he has a pending “Application to Correct [the] Record.” (Pet’r’s
Objs. at 2.) He offers no reason for why a pending motion before the superior court renders the state proceedings
unavailable. (Id.) In any event, the superior court recently denied this motion on May 16, 2016. See
Commonwealth v. Furman Osbourne, No. 2432 EDA 2015, Docket (Pa. Super. Ct. May 16, 2016) (Order Denying
2. The Report and Recommendation is APPROVED and ADOPTED;
3. The petition for a Writ of Habeas Corpus is DISMISSED without prejudice;
4. Respondents’ Motion to Suspend the Briefing Schedule is DENIED;
5. There is no probable cause to issue a certificate of appealability;3 and
6. The Clerk of Court shall mark this case closed for statistical purposes.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
Application for Correction of the Original Record). Thus, Osbourne’s case is “proceeding normally” and setting
aside the exhaustion requirement is not warranted for the reasons stated in the R & R. See Cristin v. Brennan, 281
F.3d 404, 411 (3d Cir. 2002) (even where there has been excessive delay, district courts are instructed to “stay their
consideration of habeas petitions when previously stalled state proceedings resume”).
Osbourne’s second objection argues that the Court should excuse the exhaustion requirement because the
trial court mistakenly entered a July 17, 2015 order dismissing his petition as untimely. (Pet’r’s Objs. at 2–4.)
Osbourne contends that this confusion caused delay and rendered the state proceedings effectively unavailable. (Id.)
This objection also lacks merit. As discussed in the R & R, the trial court set aside its July 17, 2015 order on March
9, 2016. (Report and Recommendation at 9 n.2, ECF No. 11.) The court addressed the merits of Osbourne’s claims
and noted its mistake in dismissing his petition as untimely. (ECF No. 9.) The court also observed that Osbourne
suffered no prejudice since his appeal to the superior court was timely made. (Id.) Thus, Osbourne’s case is
proceeding normally and the exhaustion requirement will not be set aside.
To the extent there has been any delay in the superior court proceedings, it stems from the Osbourne’s
filings. Since the R & R was filed, Osbourne has filed two applications to extend the superior court’s briefing
deadline. See Commonwealth v. Furman Osbourne, No. 2432 EDA 2015, Docket (Pa. Super. Ct. Mar. 31, 2016 and
May 3, 2016) (Applications for Extensions of Time to File Briefs). The superior court granted Osbourne’s March
31, 2016 application and extended the deadline to May 19, 2016. Id. The court granted his May 3, 2016 application
and extended the deadline to July 18, 2016. Id. In its last extension, however, the court noted that “[n]o further
extensions will be granted absent extraordinary circumstances.” Id. Osbourne cannot credibly argue that the state
proceedings are effectively unavailable when he is causing the delay.
When a district court denies a habeas petition on procedural grounds without reaching the underlying
constitutional claims, a certificate of appealability should issue only if (1) the petition states a valid claim for the
denial of a constitutional right, and (2) reasonable jurists would find it debatable whether the district court was
correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, reasonable jurists could
not disagree that Osbourne’s claims are unexhausted and proceeding normally through the state system.
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