ORTIZ v. SMITH et al

Filing 6

ORDERED THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR A WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE, THE CLERK OF THE COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/8/21. 1/8/21 ENTERED AND COPIES NOT MAILED TO PRO SE AND E-MAILED.(jpd, )

Case 2:20-cv-00649-ER Document 6 Filed 01/08/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSE ORTIZ,
Petitioner,
v.
BERRY SMITH, et al.,
Respondents.

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CIVIL ACTION
NO. 20-649

O R D E R
AND NOW, this 8th day of January, 2021, upon
consideration of the Ortiz’s pro se 28 U.S.C. § 2254 petition for
writ of habeas corpus (ECF No. 1), the pleadings, the available
state record, and the Report and Recommendation of United States
Magistrate David R. Strawbridge (ECF No. 5), there being no
objections, 1 it is hereby ORDERED that:

1

When neither party files timely objections to a
magistrate judge’s report and recommendation (“R&R”) on a
dispositive issue, the district court is not required to review
the R&R before adopting it. Thomas v. Arn, 474 U.S. 140, 150
(1985) (“It does not appear that Congress intended to require
district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither
party objects to those findings.”). However, the Third Circuit has
held that “in the absence of objections . . . the better practice
is for the district judge 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); see also Fed R. Civ. P.
72, 1983 advisory committee notes (“When no timely objection is
filed, the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.”).
In that neither party has filed objections to the R&R,
this Court has reviewed it for clear error and has found none. The

Case 2:20-cv-00649-ER Document 6 Filed 01/08/21 Page 2 of 2

1.

The Report and Recommendation is APPROVED and ADOPTED;

2.

The petition for a writ of habeas corpus is DENIED AND

DISMISSED;
3.

A certificate of appealability SHALL NOT issue, in that

the Petitioner has not made a substantial showing of the denial of
a constitutional right nor demonstrated that reasonable jurists
would debate the correctness of the procedural aspects of this
ruling. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 484 (2000); and
4.

The Clerk of the Court shall mark this case CLOSED for

statistical purposes.

AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

three substantive claims raised by Ortiz are meritless as
discussed by Judge Strawbridge in the R&R. Ortiz’s final claim of
ineffective assistance of counsel for failure to present or
preserve the first three grounds also fails because counsel cannot
be ineffective for failing to raise meritless claims.
2