Midgley v. Kane
ORDER ADOPTING REPORT AND RECOMMENDATIONS - The report and recommendation of Judge Carlson, (Doc.17), is ADOPTED IN ITS ENTIRETY; the petition for writ of habeas corpus, (Doc. 1), is DENIED with respect to the claim asserted in Ground 6 regarding the voluntariness of the petnrs guilty pleas; the petition for writ of habeas corps, (Doc. 1), is DISMISSED without prejudice as to all other grounds because these claims have not been properly exhaustedprior to the filing of the petition; the court declines to issue a certificate of appealability; and the Clerk of Court is directed to CLOSE THIS CASE.Signed by Honorable Malachy E Mannion on 11/20/17. (ao)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:15-1223
Pending before the court is the report of Magistrate Judge Martin C.
Carlson, which recommends that Ground 6 of the petitioner’s petition for writ
of habeas corpus be denied and all other grounds set forth in the petition be
dismissed without prejudice for failure to properly exhaust state court
remedies prior to initiating the instant action. (Doc. 17). No objections have
been filed to the report.
When no objections are made to a report and recommendation, the
court should, as a matter of good practice, “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 Univac Dental Co. v.
Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges
should give some review to every report and recommendation)).
Nevertheless, whether timely objections are made or not, the district court
may accept, not accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local
Here, the petitioner filed the instant action raising fourteen (14) grounds
for relief. After carefully reviewing the state court record and complex
procedural history of this matter, Judge Carlson concluded that the petitioner
failed to exhaust his state court remedies with respect to all grounds except
Ground 6 of the petition. Although doubtful that the petitioner will be able to
obtain any relief on the unexhausted grounds of his petition, Judge Carlson
recommends that the court dismiss these grounds without prejudice to allow
the petitioner, if he chooses, to exhaust these claims in the state court and
without prejudice to the Commonwealth to later assert any procedural bar to
the claims that the petitioner may pursue.
Judge Carlson determined that the only ground of the petition which was
exhausted was Ground 6, in which the petitioner claims that his guilty pleas
were involuntary. Upon review of the state court records, Judge Carlson
determined that this ground is without merit. In so finding, Judge Carlson gave
the state court’s legal and factual rulings the required deference. Judge
Carlson concluded that the petitioner did not present any clear and convincing
evidence that his guilty plea was involuntary.
The petitioner has not filed any objections to Judge Carlson’s report.
Upon review, the court finds no clear error on the face of the record. As such,
the court will adopt Judge Carlson’s report in its entirety.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
the report and recommendation of Judge Carlson, (Doc.
17), is ADOPTED IN ITS ENTIRETY;
the petition for writ of habeas corpus, (Doc. 1), is DENIED
with respect to the claim asserted in Ground 6 regarding the
voluntariness of the petitioner’s guilty pleas;
the petition for writ of habeas corps, (Doc. 1), is
DISMISSED without prejudice as to all other grounds
because these claims have not been properly exhausted
prior to the filing of the petition;
the court declines to issue a certificate of appealability; and
the Clerk of Court is directed to CLOSE THIS CASE.
S/Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: November 20, 2017
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2015 ORDERS\15-1223-01.wpd
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