BUNDY v. GARMAN et al

Filing 30

ORDER OF 4/24/2019 THAT UPON CONSIDERATION OF THE PETITION FOR WRIT OF HABEAS CORPUS, THE RESPONSE TO THE PETITION, THE REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE: ELIZBETH T. HEY, AND RESPONDENTS' MOTION FOR IMMEDIATE STAY AND APPOINTME NT OF COUNSEL FOR PETITIONER, IT IS ORDERED THAT THE R&R, ECF NO. 25, IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS GRANTED WITH RESPECT TO PETITIONER'S CLAIMS THAT HIS CONFRONTATION CLAUSE RIGHTS WERE VIOLATED BY THE INTROD UCTION OF THE STATEMENT HIS CO-DEFENDANT GAVE TO THE POLICE WITHOUT PROPER REDACTION AND THAT HIS SENTENCE VIOLATES APPRENDI V. NEW JERSEY. EXECUTION OF THE WRIT IS STAYED FOR 180 DAYS TO PERMIT THE COMMONWEALTH TO RETRY PETITIONER. IN ALL OTHER RESPECTS, THE WRIT IS DENIED. THIS CASE IS CLOSED. THERE IS NO BASIS FOR THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY. SIGNED BY JUDGE: JOSEPH F. LEESON, JR ON 4/24/2019. 4/24/2019 ENTERED AND COPIES MAILED AND E-MAILED. (DT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
ERIC BUNDY,
Petitioner,
v.
MARK GARMAN;
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA; and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

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No. 2:17-cv-03308

ORDER
AND NOW, this 24th day of April, 2019, upon consideration 1 of the Petition for Writ of
Habeas Corpus, ECF No. 1; the Response to the Petition, ECF No. 23; the Report and
Recommendation (R&R) of United States Magistrate Judge Elizabeth T. Hey, ECF No. 25; and
Respondents’ Motion for Immediate Stay and Appointment of Counsel for Petitioner, ECF No.
27, IT IS ORDERED THAT:
1.

The R&R, ECF No. 25, is APPROVED and ADOPTED.

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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).
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2.

The petition for writ of habeas corpus is GRANTED with respect to Petitioner’s

claims that his Confrontation Clause rights were violated by the introduction of the statement his
co-defendant gave to the police without proper redaction and that his sentence violates Apprendi
v. New Jersey, 530 U.S. 466 (2000).
3.

Execution of the writ is STAYED for 180 days to permit the Commonwealth to

retry Petitioner.
4.

In all other respects, the writ is DENIED.

5.

This case is CLOSED.

6.

There is no basis for the issuance of a certificate of appealability.

BY THE COURT:

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

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