GASPARICH v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 11

ORDER THAT THE CLERK OF COURT IS DIRECTED TO REMOVE THIS ACTION FROM CIVIL SUSPENSE AND RETURN IT TO THE COURT'S ACTIVE DOCKET. THE HONORABLE CAROL SANDRA MOORE WELLS'S REPORT AND RECOMMENDATION (DOC. NO. 7) IS APPROVED AND ADOPTED. TH E PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS IS DENIED. THE PETITIONER HAS NOT MADE A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT AND IS THEREFORE NOT ENTITLED TO A CERTIFICATE OF APPEALABILITY, 28 U.S.C. § 2253(C)(2). THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED. SIGNED BY HONORABLE EDWARD G. SMITH ON 3/12/18. 3/12/18 ENTERED AND COPIES MAILED TO PETITIONER, E-MAILED.(er, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AARON C. GASPARICH,
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA, THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA, and THE DISTRICT
ATTORNEY OF LANCASTER COUNTY,
Respondents.

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CIVIL ACTION NO. 17-4432

ORDER
AND NOW, this 12th day of March, 2018, the court having considered the petition for
writ of habeas corpus under 28 U.S.C. § 2254 filed by the pro se petitioner, Aaron C. Gasparich,
(Doc. No. 1-1), the respondents’ response to the petition (Doc. No. 6), the state court record, and
United States Magistrate Judge Carol Sandra Moore Wells’s report and recommendation (Doc.
No 7); accordingly it is hereby ORDERED as follows:
1.

The clerk of court is DIRECTED to remove this action from civil suspense and

RETURN it to the court’s active docket; 1
2.

The Honorable Carol Sandra Moore Wells’s report and recommendation (Doc.

No. 7) is APPROVED and ADOPTED;
3.
1

The petitioner’s petition for writ of habeas corpus is DENIED;

Since neither party filed objections to Judge Wells’s report and recommendation, the court need not review the
report before adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). Nonetheless, “the better practice
is for the district judge to afford some level of review to dispositive legal issues raised by the report.” Id. As such,
the court will review the report for plain error. See Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (“In
the absence of a timely objection, . . . this Court will review [the magistrate judge’s] Report and Recommendation
for clear error.” (internal quotation marks omitted)). The 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). The court has reviewed
Judge Wells’s report for plain error and has found none.

4.

The petitioner has not made a substantial showing of the denial of a constitutional

right and is therefore not entitled to a certificate of appealability, 28 U.S.C. § 2253(c)(2); and
5.

The clerk of court shall mark this case as CLOSED.

BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

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