MELENDEZ v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 5

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR ALL PURPOSES INCLUDING STATISTICS. SIGNED BY HONORABLE GENE E.K. PRATTER ON 5/16/17. 5/17/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JULIO MELENDEZ,
Petitioner,
v.
COMMONWEALTH OF
PENNYSYLVANIA, et al.,
Respondents.

:
:
:
:
:
:
:
:

CIVIL ACTION
No. 17-289

ORDER
AND NOW, this 16th day of May, 2017, having considered the Petition for Writ of
Habeas Corpus filed by Petitioner Julio Melendez (Docket No. 1) and United States Magistrate
Judge Thomas J. Rueter’s Report & Recommendation (Docket No. 3) it is hereby ORDERED
that:
1.

The Report & Recommendation is APPROVED and ADOPTED. 1

2.

The Petition for Writ of Habeas Corpus (Docket No. 1) is DISMISSED.

3.

There is no probable cause to issue a certificate of appealability. 2

4.

The Clerk of Court shall mark this case CLOSED for all purposes, including
statistics.
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
United States District Judge

1

Mr. Melendez did not file objections to Judge Reuter’s Report & Recommendation. Judge Reuter
recommends dismissal in part based upon the Commonwealth’s decision to withdraw the charges against Mr.
Melendez and close the case. While the charges were withdrawn before Judge Reuter issued his Report &
Recommendation, it now appears that the Commonwealth has reasserted the claims against Mr. Melendez. Mr.
Melendez’s habeas petition, however, was based upon delays in the months leading up to date upon which he filed
his petition, not the substance of the criminal charges themselves. Regardless, the Court agrees with Judge Reuter
that Mr. Melendez has failed to exhaust his claims in state court, requiring dismissal.
2
A certificate of appealability may issue only upon “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). A 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); Lambert
v. Blackwell, 387 F.3d 210, 230 (3d Cir. 2004). The Court agrees with Judge Reuter that there is no probable cause
to issue such a certificate in this action.