Miller v. Kearney et al
ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Smyser 10 , DISMISSING ptnr's petition for writ of habeas corpus 1 for failure to exhaust state remedies, & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Honorable Christopher C. Conner on 09/10/12. (ki )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WALTER C. MILLER,
THOMAS KEARNEY, MARY SABOL,
and AL SABOL,
CIVIL ACTION NO. 1:12-CV-1214
AND NOW, this 10th day of September, 2012, upon consideration of the Report
and Recommendation of United States Magistrate Judge J. Andrew Smyser (Doc. 10),
recommending that petitioner’s petition for writ of habeas corpus (Doc. 1) be dismissed,
and, following an independent review of the record, it appearing that neither party has
objected to the magistrate judge’s report and recommendation, and that there is no clear
error on the face of the record,1 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007)
When parties fail to file timely objections to a magistrate judge’s report and
recommendation, the Federal Magistrates Act does not require a district court to
review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). As a
matter of good practice, however, the Third Circuit expects courts 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). The advisory committee notes to Rule
72(b) of the Federal Rules of Civil Procedure indicate that “[w]hen 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.” FED . R. CIV . P. 72(b),
advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating that “the
failure of a party to object to a magistrate’s legal conclusions may result in the loss
of the right to de novo review in the district court”); Tice v. Wilson, 425 F. Supp. 2d
676, 680 (W.D. Pa. 2006) (holding that the court’s review is conducted under the
“plain error” standard); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998) (holding
that the court’s review is limited to ascertaining whether there is “clear error on the
face of the record”); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (holding
that the court will review the report and recommendation for “clear error”). The
court has reviewed the magistrate judge’s report and recommendation in
accordance with this Third Circuit directive.
(explaining that “failing to timely object to [a report and recommendation] in a civil
proceeding may result in forfeiture of de novo review at the district court level”), it is
hereby ORDERED that:
The Report and Recommendation of Magistrate Judge Smyser (Doc. 10) are
Petitioner’s petition for writ of habeas corpus (Doc. 1) is DISMISSED for
failure to exhaust state remedies.
The Clerk of Court is directed to CLOSE this case.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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