Fitzpatrick v. Weitzel et al
Filing
11
ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS ORDERED THAT: 1. The Court ADOPTS the Report and Recommendation 10 of Magistrate Judge Schwab; 2. Petitioner Joseph Bernard Fitzpatrick, IIIs petition 1 for a writ of habeas corpusfiled pursuant t o 28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE as MOOT; 3. The Commonwealth of Pennsylvanias motion 4 to dismiss is DENIED as MOOT; 4. No certificate of appealability shall issue, as the Petitioner has failed to demonstrate a substantial sh owing of the denial of a constitutional right, 28U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003);Slack v. McDaniel, 529 U.S. 473, 484 (2000); and5.The Clerk is directed to CLOSE this case. Signed by Honorable Yvette Kane on 7/28/2017. (rw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH BERNARD FITZPATRICK, III, :
Petitioner
:
:
v.
:
:
JOHN E. WEITZEL, et al.,
:
Respondents
:
ORDER
No. 1:16-cv-02256
(Judge Kane)
(Chief Magistrate Judge Schwab)
Before the Court is the July 28, 2017 Report and Recommendation of Magistrate Judge
Schwab (Doc. No. 10), recommending that the Court deny Petitioner Joseph Bernard Fitzpatrick,
III’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1), and the
Commonwealth of Pennsylvania’s motion to dismiss (Doc. No. 4). No timely objections have been
filed. ACCORDINGLY, on this 28th day of July 2017, upon independent review of the record and
the applicable law, IT IS ORDERED THAT:
1. The Court ADOPTS the Report and Recommendation of Magistrate Judge
Schwab (Doc. No. 10);
2. Petitioner Joseph Bernard Fitzpatrick, III’s petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1), is DISMISSED WITHOUT
PREJUDICE as MOOT;1
3. The Commonwealth of Pennsylvania’s motion to dismiss (Doc. No. 4), is
DENIED as MOOT;
4. No certificate of appealability shall issue, as the Petitioner has failed to
demonstrate “a substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); and
5. The Clerk is directed to CLOSE this case.
s/Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania
1
The Court is persuaded that the instant petition, premised entirely on Petitioner’s detention without
a judgment of conviction, was rendered moot upon the Superior Court of Pennsylvania’s issuance of
an order vacating the trial court’s order that granted Petitioner’s post-sentence motion for judgment
of acquittal, and directing reinstatement of the judgment of conviction.
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