Goodman v. Kerestes et al

Filing 18

ORDER ADOPTING REPORT of Magistrate Judge Schwab 17 , DENYING respondent's motion 12 to dismiss Goodman's petition 1 as unauthorized 2nd or successive petition, & REMANDING matter to Magistrate Judge Schwab for further proceedings. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 5/5/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD GOODMAN,
Plaintiff
v.
JOHN KERESTES,
Defendant

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CIVIL ACTION NO. 1:14-CV-1319
(Chief Judge Conner)

ORDER
AND NOW, this 5th day of May, 2015, upon consideration of the report (Doc.
17) of Magistrate Judge Susan E. Schwab, wherein the magistrate judge rejects the
respondent’s characterization of the instant petition (Doc. 1) pursuant to 28 U.S.C.
§ 2254 filed by petitioner and state prisoner Edward Goodman (“Goodman”) as an
unauthorized second or successive petition, and concludes that the instant petition
involves conduct of the Pennsylvania Board of Probation and Parole occurring after
resolution of Goodman’s first Section 2254 petition by this court and by the Third
Circuit Court of Appeals, (see Doc. 17 at 13-15 (citing Warren v. Bledsoe, No. 08-1657,
2009 WL 4823872, at *2 (M.D. Pa. Nov. 19, 2009); Walls v. Attorney General of Pa., No.
06-1598, 2007 WL 4190790, at *2 (W.D. Pa. Nov. 26, 2007)), and thus recommends the
court deny respondent’s motion (Doc. 12) to dismiss the petition on those grounds,
(Doc. 17 at 7-15), and, following an independent review of the record, it appearing
that neither party objects to the report, 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 the
failure to timely object “may result in forfeiture of de novo review at the district court
level”), it is hereby ORDERED that:
1.

The report (Doc. 17) of Magistrate Judge Schwab is ADOPTED.

2.

Respondent’s motion (Doc. 12) to dismiss Goodman’s petition (Doc. 1)
as an unauthorized second or successive petition is DENIED.

3.

This matter is REMANDED to Magistrate Judge Schwab for further
proceedings.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

1

When parties fail to timely object 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. See 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
reviews the Magistrate Judge’s report in according with this Third Circuit directive.