HARVEY v. SOMERS et al

Filing 22

ORDER THAT THE REPORT AND RECOMMENDATION, ECF NO. 19, IS APPROVED AND ADOPTED. THE PETITION FOR A WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED, AND A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE. THE CLERK OF COURT SHALL CLOSE THIS CASE. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 6/27/17. 6/27/17 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
LAMONT HARVEY,

:
:
Petitioner,
:
:
v.
:
:
JACK SOMMERS et al.,
:
:
Respondents.
:
__________________________________________

No. 2:16-cv-00187

ORDER
AND NOW, this 26th day of June, 2017, upon consideration of the pro se petition of
Lamont Harvey, ECF No. 1, his Memorandum of Law in Support, ECF No. 7, the Response in
Opposition filed by the Philadelphia District Attorney, ECF No. 16, and of the Report and
Recommendation (“R&R”) of David R. Strawbridge, United States Magistrate Judge, ECF No.
19, to which no objections have been filed, 1 IT IS ORDERED THAT:

1

When neither party objects to a magistrate judge’s report and recommendation, the
district court is not statutorily required to review the report, under de novo or any other standard.
28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 152 (1985). Nevertheless, the United
States Court of Appeals for the Third Circuit has held that it is better practice to afford some
level of review to dispositive legal issues raised by the report. Henderson v. Carlson, 812 F.2d
874, 878 (3d Cir. 1987), writ denied 484 U.S. 837 (1987). “When no objections are filed, the
district court need only review the record for plain error or manifest injustice.” Harper v.
Sullivan, No. 89-4272, 1991 U.S. Dist. LEXIS 2168, at *2 n.3 (E.D. Pa. Feb. 22, 1991). See also
Hill v. Barnacle, No. 15-3815, 2016 U.S. App. LEXIS 12370, at *16-17 (3d Cir. 2016) (holding
that even when objections are filed, district courts “are not required to make any separate
findings or conclusions when reviewing a Magistrate Judge’s recommendation de novo under 28
U.S.C. § 636(b)”); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (explaining that in
the absence of a timely objection, the court should review the magistrate judge’s report and
recommendation for clear error). The district 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).
1

1.

The Report and Recommendation, ECF No. 19, is APPROVED and

ADOPTED;
2.

The petition for a writ of habeas corpus is DENIED AND DISMISSED;

3.

A certificate of appealability SHALL NOT issue because Petitioner has not

shown that reasonable jurists would find the Court’s assessment of the constitutional claims
debatable or wrong, nor has he shown that reasonable jurists would debate the correctness of the
procedural aspect of this ruling; 2 and
4.

The Clerk of the Court shall CLOSE this case.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.____________
JOSEPH F. LEESON, JR.
United States District Judge

2

“Under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), a ‘circuit
justice or judge’ may issue a COA [certificate of appealability] only if the petitioner ‘has made a
substantial showing of the denial of a constitutional right.’” Tomlin v. Britton, 448 F. App’x
224, 227 (3d Cir. 2011) (citing 28 U.S.C. § 2253(c)). “Where a district court has rejected the
constitutional claims on the merits, . . . the petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition
on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
2