Pfleegor v. Court of Common Pleas et al
ORDER ADOPTING REPORT AND RECOMMENDATION of Judge Carlson 17 , DISMISSING petition for writ of habeas corpus w/out prejudice, noting no basis for certificate of appealability, & directing Clrk of Ct to CLOSE case. (See order for complete details.)Signed by Honorable Christopher C. Conner on 2/21/13. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS, et al.,
CIVIL ACTION NO. 1:12-CV-1296
AND NOW, this 21st day of February, 2013, upon consideration of the Report and
Recommendation of United States Magistrate Judge Martin C. Carlson (Doc. 17),
recommending that the 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)
(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 Judge Carlson (Doc. 17) are
The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
DISMISSED without prejudice.
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.
There is no basis for the issuance of a certificate of appealabilty. See
28 U.S.C. § 2253(c).2
The Clerk of Court is directed to CLOSE this case.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a
certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant has
made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003)).
Here, jurists of reason would not find the disposition of this case debatable.
However, petitioner is advised that he has the right to appeal our order denying his
petition within thirty days, see 28 U.S.C. § 2253(a); FED . R. APP . P. 4(a)(1)(A), and
that our denial of a certificate of appealability does not prevent him from doing so,
as long as he seeks, and obtains, a certificate of appealability from the court of
appeals. See FED . R. APP . P. 22.
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