RANDALL v. DELBOSO et al

Filing 60

ORDER ADOPTING REPORT AND RECOMMENDATIONS AS OUTLINED HEREIN. CLERK OF COURT IS DIRECTED TO REMOVE THIS CASE FROM SUSPENSE AND MARK IT CLOSED. SIGNED BY DISTRICT JUDGE KELLEY BRISBON HODGE ON 3/26/24. 3/26/24 ENTERED AND COPIES NOT MAILED TO RANDALL AND E-MAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAMSEY RANDALL,
Petitioner,

CIVIL ACTION

v.
MICHAEL ZAKAN, et al.,
Respondents.

NO. 18-961
ORDER

AND NOW, this 26th day of March, 2024, after considering the petition under 28 U.S.C.
§ 2254 for writ of habeas corpus (ECF No. 1), the government’s response in opposition to the
petition (ECF No. 11), the Petitioner’s numerous requests, memos, and other documents (ECF
Nos. 7, 8, 48, 50, and 51), United States Magistrate Judge Elizabeth T. Hey’s Report and
Recommendation (ECF No. 55), and the Petitioner’s objections to the Report and
Recommendation (ECF Nos. 56, 57, 58, and 59), IT IS HEREBY ORDERED as follows:
1. The Petitioner’s objections to the Report and Recommendation (ECF Nos. 56, 57, 58, and
59) are OVERRULED; 1
2. Judge Hey’s Report and Recommendation (ECF No. 55) is APPROVED and ADOPTED;
3. The petition for a writ of habeas corpus (ECF No. 1) is DENIED;
4. Petitioner’s motions/requests for counsel, bail, damages, and discovery (ECF Nos. 7, 8, 48,
50, and 51) are DENIED.
5. There is no plausible basis for the issuance of a certificate of appealability. 2
6. The Clerk of Court is DIRECTED to remove this case from suspense and mark this case as
CLOSED.
BY THE COURT:
V+RQ.HOOH\%+RGJH
HODGE, KELLEY B., J.

1

Under 28 U.S.C. § 636(b)(1), “[a] judge of the court shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). Petitioner objects to Judge Hey’s recommendation that
the Court should deny his petition for writ of habeas corpus. (ECF No. 58.) Specifically, he avers
that his defamation claim has been misconstrued. (ECF No. 58 at 1.) Petitioner’s objection is
unavailing. The Court agrees with Judge Hey’s determination that a defamation claim is not a basis
for habeas relief. (ECF No. 55 at 11 n.9 (citing Randall v. Sup’t Mahanoy SCI, 835 F. App’x 675,
677 (3d Cir. 2020)).)
As a foundational matter, the Court agrees with Judge Hey’s determination that Petitioner’s
claims are procedurally defaulted. (ECF No. 55 at 7.) While a petitioner must generally exhaust
his state remedies before the federal court can consider the merits of a habeas claim, a petitioner’s
failure to exhaust his state remedies may be excused in limited circumstances on the ground that
exhaustion would be futile. See Lambert v. Blackwell, 134 F.3d 506, 518–19 (3d. Cir. 1997).
Petitioner has never properly presented any claims to the Superior Court and is now out of time to
do so. See 42 Pa. C.S.A. § 9545(b) (PCRA statute of limitations). Thus, for the reasons set forth
in the Report and Recommendation, Petitioner’s claims are procedurally defaulted.
Petitioner’s objections to the Report and Recommendation include a section titled
“NOTICE OF APPEAL.” (ECF No. 58.) A Report and Recommendation is only a proposed
finding, and it must be accepted, rejected, or modified by the district court. See 28 U.S.C. §
636(b)(1)(C) (“A judge of the [district] court may accept, reject, modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”). As a proposed finding, and not a
final order, Judge Hey’s Report and Recommendation is not appealable to the Court of Appeals.
See United States v. Polishan, 336 F.3d 234, 240 n.3 (3d Cir. 2003) (“We note that an appellate
court may lack jurisdiction to review dispositive decisions made by a magistrate judge under 28
U.S.C. § 636(b)(1)(B) because that order is not final. Rather, it is a proposed finding and
recommendation that must be accepted, rejected, or modified by the district court.”). In its
consideration of ECF No. 58, the Court therefore interpreted the section titled “NOTICE OF
APPEAL” to be a subpart of Petitioner’s objection to the Report and Recommendation.
Where no objection is made to a report and recommendation, this Court will review the
recommendation only for clear error. Fed. R. Civ. P. 72(b), advisory committee notes. The Court
has reviewed the remainder of the Report and Recommendation as to Petitioner’s motions/requests
for counsel, bail, damages, and discovery (ECF Nos. 7, 8, 48, 50 and 51) to which Petitioner did
not raise specific objections and finds it to be well reasoned and free of clear error. Therefore, the
Court will overrule Petitioner’s objection and adopt the Report and Recommendation.
2
In determining whether a certificate of appealability (COA) should be issued, “When the
district court denies a habeas petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue (and an appeal of the district court’s order
may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.”
Slack v. Warden, 529 U.S. 473,473 (2000). In adopting the Report and Recommendation, the
Court concurs with Judge Hey’s conclusion that “[t]here has been no substantial showing of the
denial of a constitutional right requiring the issuance of a certificate of appealability.” (ECF No.
55 at 16.)
2