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)

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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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