BIRCKETT v. MCGINLEY

Filing 48

ORDERED AND DECREED THAT THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE RICHARD A. LLORET IS APPROVED AND ADOPTED; MR. BIRCKETTS MOTION FOR REQUEST FOR JUDICIAL NOTICE PURSUANT TO FEDERAL RULES OF EVIDENCE RULE 201(C) (DOC. NO. 42) IS DENIED; 3. M R. BIRCKETTS PETITION FOR WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED WITH PREJUDICE BY SEPARATE JUDGMENT, FILED CONTEMPORANEOUSLY WITH THIS ORDER. SEE FEDERAL RULE OF CIVIL PROCEDURE 58(A); RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES D ISTRICT COURTS, RULE 12; 4. NO CERTIFICATE OF APPEALABILITY SHALL ISSUE UNDER 28 U.S.C. § 2253(C)(1)(A) BECAUSE THE APPLICANT HAS [NOT] MADE A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT[,] UNDER 28 U.S.C. § 2253(C)(2), SINC E HE HAS NOT DEMONSTRATED THAT REASONABLE JURISTS WOULD FIND MY ASSESSMENT OF THE CONSTITUTIONAL CLAIMS DEBATABLE OR WRONG. SLACK V. MCDANIEL, 529 U.S. 473, 484 (2000); SEE UNITED STATES V. CEPERO, 224 F.3D 256, 262-63 (3D CIR. 2000), ABROGATED ON OT HER GROUNDS BY GONZALEZ V. THALER, 565 U.S. 134 (2012); AND 5. THE CLERK OF COURTS SHALL MARK THIS FILE CLOSED. PETITIONERS MOTION FOR EXTENSION OF TIME IS DENIED AS MOOT.. SIGNED BY HONORABLE PETRESE B. TUCKER ON 5/1/20. 5/1/20 ENTERED AND COPIES NOT MAILED TO PRO SE AND E-MAILED.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAYMON BIRCKETT,
Petitioner,
v.
ROBERT MCGINLEY, et al.,
Respondents.

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CIVIL ACTION
NO. 18-1533

ORDER
AND NOW, this __1st__ day of May, 2020, upon careful and independent consideration
of Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1), Magistrate Judge Richard A. Lloret’s
Report and Recommendation (“Report and Recommendation”) (Doc. 43), and Petitioner’s
Objections to the Report and Recommendation (Doc. 47), IT IS HEREBY ORDERED AND
DECREED as follows:
1. The Report and Recommendation of Magistrate Judge Richard A. Lloret is
APPROVED and ADOPTED;
2.

Mr. Birckett’s Motion for Request for Judicial Notice Pursuant to Federal Rules of
Evidence Rule 201(c) (Doc. No. 42) is DENIED; 3. Mr. Birckett’s Petition for Writ
of Habeas Corpus is DENIED and DISMISSED with prejudice by separate Judgment,
filed contemporaneously with this Order. See Federal Rule of Civil Procedure 58(a);
Rules Governing Section 2254 Cases in the United States District Courts, Rule 12; 4.
No certificate of appealability shall issue under 28 U.S.C. § 2253(c)(1)(A) because
“the applicant has [not] made a substantial showing of the denial of a constitutional
right[,]” under 28 U.S.C. § 2253(c)(2), since he has not demonstrated that “reasonable

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jurists” would find my “assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see United States v. Cepero, 224 F.3d
256, 262-63 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565
U.S. 134 (2012); and 5. The Clerk of Courts shall mark this file closed.
3. Petitioner’s Motion for Extension of Time is DENIED AS MOOT.

BY THE COURT:

/s/ Petrese B. Tucker
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Hon. Petrese B. Tucker, U.S.D.J.

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