KENNEDY v. CAPOZZA
ORDER OF 1/7/21 THAT UPON CONSIDERATION OF PETITIONER'S MOTION TO STAY AND HOLD IN ABEYANCE, ECF NO.1; THE RESPONSES THERETO NOTING THE RESPONDENTS DO NOT OPPOSE THE MOTION, ECF NO. 9; THE REPORT AND RECOMMENDATION ISSUED BY MAGISTRATE JUDGE RI CE ON NOVEMBER 16, 2020, ECF NO. 12; IN THE ABSENCE OF OBJECTIONS TO THE REPORT AND RECOMMENDATION; AND FOR THE REASONS SET FORTH IN THE REPORT AND RECOMMENDATION, IT IS ORDERED THAT: THE REPORT AND RECOMMENDATION, ECF NO. 12, IS ADOPTED. THE PETITIO N FOR WRIT OF HABEAS CORPUS, ECF NO. 1, IS STAYED AND HELD IN ABEYANCE. PETITIONER'S MOTION NOTIFYING THE COURT AS TO THE STATUS OF PETITIONER'S STATE COURT LITIGATION, ECF NO. 4, IS DISMISSED. PETITIONER SHALL NOTIFY THIS COURT WITHIN 30 D AYS FOLLOWING THE CONCLUSION OF HIS STATE COURT PROCEEDINGS. IF PETITIONER DOES NOT TIMELY INFORM THIS COURT OF THE CONCLUSION OF HIS STATE COURT PROCEEDINGS, THIS STAY AND ABEYANCE ORDER WILL BE VACATED AND HIS PETITION WILL BE DISMISSED WITHOUT PREJUDICE. SIGNED BY JUDGE: JOSEPH F. LEESON JR ON 1/7/21. 1/8/21 ENTERED AND COPIES E-MAILED. (DT) (COPY NOT MAILED TO PRO SE) Modified on 1/8/2021 (dt, ).
Case 2:20-cv-02438-JFL Document 13 Filed 01/08/21 Page 1 of 2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
MARK CAPOZZA, DISTRICT
ATTORNEY OF THE COUNTY OF
PHILADELPHIA, and THE ATTORNEY :
GENERAL OF THE STATE OF
AND NOW, this 7th day of January, 2021, upon consideration of Petitioner’s Motion to
Stay and Hold in Abeyance, ECF No. 1; the Response thereto noting the Respondents do not
oppose the motion, ECF No. 9; the Report and Recommendation issued by Magistrate Judge
Timothy R. Rice on November 16, 2020, ECF No. 12; in the absence of objections to the Report
and Recommendation; 1 and for the reasons set forth in the Report and Recommendation, IT IS
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
Case 2:20-cv-02438-JFL Document 13 Filed 01/08/21 Page 2 of 2
The Report and Recommendation, ECF No. 12, is ADOPTED.
The Petition for Writ of Habeas Corpus, ECF No. 1, is STAYED and held in
Petitioner’s Motion Notifying the Court as to the Status of Petitioner’s State Court
Litigation, ECF No. 4, is DISMISSED. 2
Petitioner shall notify this Court within thirty (30) days following the conclusion
of his state court proceedings. If Petitioner does not timely inform this Court of
the conclusion of his state court proceedings, this stay and abeyance order will be
vacated and his petition will be dismissed without prejudice.
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
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).
Incorrectly titled as a motion, this filing is in fact a status report informing this Court as
to the status of the ongoing state court litigation. Notwithstanding, the Court considered the
information therein when reviewing the Report and Recommendation.
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