Armolt v. Kerestes et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS in its entirety 8 . 2 MOTION for Leave to Proceed in forma pauperis filed by Jeffrey Armolt is Granted. 3 MOTION to Appoint Counsel filed by Jeffrey Armolt is DENIED. 1 Complaint filed by Je ffrey Armolt is DISMISSED WITHOUT PREJUDICE to the Petitioner requesting leave from the Court of Appeals to pursue a second and successive federal habeas petition. The Court shall close the case. Signed by Honorable John E. Jones, III on 9/14/15. (pw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY ARMOLT,
Petitioner,
v.
JOHN KEREKSTES, et al.,
Respondents.

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1:15-cv-1642

Hon. John E. Jones III
Hon. Martin C. Carlson

ORDER
September 14, 2015
AND NOW, upon consideration of the Report and Recommendation of
Chief United States Magistrate Judge Martin C. Carlson (Doc. 8), recommending
that we grant Petitioner’s motion for leave to proceed in forma pauperis (Doc. 2),
but that we deny his request for appointment of counsel (Doc. 3), and dismiss his
petition for writ of habeas corpus (Doc. 1) without prejudice to Petitioner
requesting leave from the Court of Appeals to pursue a second and successive
federal habeas corpus petition, after an independent review of the record, and
noting that Petitioner filed objections (Doc.10),1 and the Court finding Judge

1

Where objections to a magistrate judge’s report and recommendation are filed, the court
must perform a de novo review of the contested portions of the report. Supinksi v. United Parcel
Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3 (M.D. Pa. Jan. 16, 2009) (citing Sample v.
Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). “In this regard, Local
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Carlson’s analysis to be thorough, well-reasoned, and fully supported by the
record, and the Court further finding Petitioner’s objections to be without merit2
and squarely addressed by Judge Carlson’s report IT IS HEREBY ORDERED
THAT:
1.

The Report and Recommendation of Magistrate Judge Carlson (Doc.
8) is ADOPTED in its entirety.

2.

The Petitioner’s Motion for Leave to Proceed in forma pauperis
(Doc. 2) is GRANTED.

3.

The Petitioner’s request for appointment of counsel (Doc. 3) is
DENIED.

4.

The petition for writ of habeas corpus (Doc. 1) is DISMISSED
WITHOUT PREJUDICE to the Petitioner requesting leave from the

Rule of Court 72.3 requires ‘written objections which . . . specifically identify the portions of the
proposed findings, recommendations or report to which objection is made and the basis for those
objections.’” Id. (citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL 4186951, at *6 (M.D.
Pa. Sept. 8, 2008).
2

Petitioner’s objections present the Court with no availing argument to contravene the
Magistrate Judge’s correct conclusion that Petitioner’s pleading, cast as a motion under Rule
60(b) of the Federal Rules of Civil Procedure, is actually a second and successive federal petition
for writ of habeas corpus. Thus, as the Magistrate Judge appropriately notes, dismissal without
prejudice is appropriate here, and the Petitioner must follow the dictates of the AEDPA – being
that he must first present this second and successive petition to the Court of Appeals.
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Court of Appeals to pursue a second and successive federal habeas
corpus petition.
5.

The Clerk of Court shall CLOSE this case.

s/ John E. Jones III
John E. Jones III
United States District Judge

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