GUY v. SMITH et al

Filing 34

ORDERED THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; PETITIONER'S PETITION FOR WIRT OF HABEAS CORPUS IS DENIED AND CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE. SIGNED BY HONORABLE GERALD A. MCHUGH ON 4/18/19. 4/19/19 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN GUY,
Petitioner,
v.
BARRY SMITH, et al.,
Respondents.

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CIVIL ACTION
No. 18-976

ORDER
This 18th day of April 2019, upon careful and independent consideration of the pleadings
and record herein, and after review of the Report and Recommendation (ECF No. 32) issued by
the Honorable Thomas J. Rueter, United States Magistrate Judge, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;1
2. Petitioner’s petition for writ of habeas corpus is DENIED; and
3. A certificate of appealability is not granted.

/s/ Gerald Austin McHugh
United States District Judge

I adopt the Report and Recommendation on the basis that Alleyne v. United States, 570 U.S. 99
(2012) is not applicable to the facts presented by the present petition. The applicability of Alleyne
under other circumstances is not before me. Specifically, I am not prepared at this juncture to
endorse the proposition that Alleyne’s principles apply only to mandatory sentences, as suggested
by United States v. Sechler, 535 F. App’x 150 (3d Cir. 2013), a non-precedential decision.
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