Anderson v. United States of America et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS HEREBY ORDERED THAT: 1. The Report and Recommendation (Doc. 10) of Magistrate Judge Carlson is ADOPTED in its entirety. 2. The petition for writ of habeas corpus (Doc. 1) is DISMISSED for lack of juri sdiction. This dismissal is without prejudice to Petitioner pursuing relief with the appropriate court of appeals pursuant to 28 U.S.C. § 2255. 3. The Clerk of Court is directed to CLOSE the file on this case.Signed by Honorable John E. Jones, III on 3/12/19. (dmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KURT ANDERSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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3:17-cv-1241
Hon. John E. Jones III
Hon. Martin C. Carlson

ORDER
March 12, 2019
AND NOW, upon consideration of the Report and Recommendation (Doc.
10) of United States Magistrate Judge Martin C. Carlson recommending that the
instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 be
dismissed for lack of jurisdiction but without prejudice to Petitioner seeking leave
of the appropriate court of appeals to file a second and successive petition pursuant
to 28 U.S.C. § 2255, and noting that Petitioner has not filed objections to the
report1 and that there is and that there is no clear error on the record, see Nara v.
When parties fail to file timely objections 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. 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.
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Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that “failing to timely object
to [a report and recommendation] in a civil proceeding may result in forfeiture of
de novo review at the district court level”) and the Court finding Judge Carlson’s
analysis to be thorough, well-reasoned, and fully supported by the record IT IS
HEREBY ORDERED THAT:
1.

The Report and Recommendation (Doc. 10) of Magistrate

Judge Carlson is ADOPTED in its entirety.
2.

The petition for writ of habeas corpus (Doc. 1) is DISMISSED

for lack of jurisdiction. This dismissal is without prejudice to
Petitioner pursuing relief with the appropriate court of appeals
pursuant to 28 U.S.C. § 2255.
3.

The Clerk of Court is directed to CLOSE the file on this case.

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

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 has reviewed
the magistrate judge’s report and recommendation in accordance with this Third Circuit
directive.
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