Lebo v. Kerestes et al

Filing 31

ORDER: 1) The R and R 30 of MJ Carlson is ADOPTED;2) Petrs mtn to compel re-sentencing 27 is DENIED without prejudice as either moot, premature, or unexhausted.3) The court finds no basis to issue a certificate of appealability. Signed by Honorable Sylvia H. Rambo on 5/1/19. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN EARL LEBO, JR.,
Petitioner
v.
COMMONWEALTH OF
PENNSYLVANIA,
Respondent

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CIVIL ACTION NO. 1:13-CV-1637
(Judge Sylvia H. Rambo)

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ORDER

AND NOW, this 1st day of May, 2019, upon consideration of the motion (Doc.
14) filed by pro se petitioner John Earl Lebo, Jr. (“Lebo”), seeking an order
compelling the state court to resentence him in accordance with the court’s order
in Lebo v. Wetzel, No. 1:13-CV-1637, Doc. 23 (M.D. Pa. June 7, 2016) (Rambo, J.),
wherein the court granted Lebo’s petition for writ of habeas corpus in light of the
United States Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012),
and Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), and further upon
consideration of the report (Doc. 17) of Magistrate Judge Martin C. Carlson, which
recommends that we deny Lebo’s motion (Doc. 14) as moot and as premature and
unexhausted, and it appearing that no party has objected to the report, see FED.
R. CIV. P. 72(b)(2), and the court noting that the failure of a party to timely object
to a magistrate judge’s conclusions “may result in forfeiture of de novo review at
the district court level,” Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (citing
Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987)), but that, as a matter

of good practice, a district court should afford “reasoned consideration” to the
uncontested portions of the report, E.E.O.C. v. City of Long Branch, 866 F.3d 93,
100 (3d Cir. 2017) (quoting Henderson, 812 F.2d 879), in order to “satisfy itself that
there is no clear error on the face of the record,” FED. R. CIV. P. 72(b), advisory
committee notes, and, following an independent review of the record, the court
being in agreement with Judge Carlson’s recommendation, and concluding that
there is no clear error on the face of the record, IT IS HEREBY ORDERED that:
1) The report (Doc. 30) of Magistrate Judge Carlson is ADOPTED
2) Petitioner’s motion to compel re-sentencing (Doc. 27) is DENIED without
prejudice as either moot, premature, or unexhausted.
3) The court finds no basis to issue a certificate of appealability. See 28 U.S.C. §
2253(c); see also 28 U.S.C. § 2254 Rule 11(a).

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge

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