HENDERSON v. MAY et al

Filing 11

ORDER THAT THE CLERK OF COURT IS DIRECTED TO REMOVE THIS ACTION FROM CIVIL SUSPENSE; THE HONORABLE RICHARD A. LLORETS REPORT AND RECOMMENDATION (DOC. NO. 9 ) IS APPROVED AND ADOPTED; THE PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO. 1 ) IS DENIED; 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 THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED. SIGNED BY HONORABLE EDWARD G. SMITH ON 6/15/17. 6/15/17 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JMAR M. HENDERSON,
Petitioner,
v.
G. MAY, et al.,
Respondents.

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CIVIL ACTION NO. 16-5004

ORDER
AND NOW, this 15th day of June, 2017, after considering the petition for writ of habeas
corpus (Doc. No. 1), the respondents’ response thereto (Doc. No. 8), the state-court record, and
United States Magistrate Judge Richard A. Lloret’s report and recommendation (Doc. No. 9);
and no party having filed timely objections to the report and recommendation; 1 accordingly, it is
hereby ORDERED as follows:
1.

The Clerk of Court is DIRECTED to remove this action from civil suspense;

2.

The Honorable Richard A. Lloret’s report and recommendation (Doc. No. 9) is

APPROVED and ADOPTED;

1

2

According to the last address the petitioner provided to the clerk of court, the petitioner is incarcerated at the
Curran-Fromhold Correctional Facility, 7901 State Road, Philadelphia, Pennsylvania. On June 9, 2017, however,
the U.S. Postal Service returned an envelope containing Judge Lloret’s report and recommendation to the clerk of
court “for the following reason: Return to sender, at court.” See Unnumbered docket entry after Doc. No. 9. Upon
further investigation, the Curran-Fromhold Correctional Facility informed the court that the petitioner had been
released in February of 2017. Thus, while it appears that the petitioner has not received a copy of Judge Lloret’s
report and recommendation, the petitioner has also failed to notify the clerk of court of his change of address within
fourteen days as required by Local Civil Rule 5.1(b). Because a pro se litigant’s failure to comply with Rule 5.1(b)
in itself justifies dismissal for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure, and
because the report and recommendation was served on the petitioner upon the clerk of court mailing it to his last
known address, see Fed. R. Civ. P. 5(b)(2)(C), the court concludes that the petitioner has failed to file timely
objections to the report and recommendation.
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Since neither party filed objections to Judge Lloret’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

3.

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

4.

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
5.

The Clerk of Court shall mark this case as CLOSED.

BY THE COURT:

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

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 Lloret’s report for plain error and has found none.

2