Mills v. Commonwealth of Pennsylvania

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS (1)The report of Judge Arbuckle, (Doc. 5), is ADOPTED IN ITS ENTIRETY.(2)The plaintiffs habeas petition, (Doc. 1), is DISMISSED WITH PREJUDICE.(3)The Clerk of Court is directed to CLOSE THIS CASE; adopting 5 Report and Recommendations.Signed by Honorable Malachy E Mannion on 4/9/19. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMES RONALD MILLS, JR.,
Petitioner

:

COMMONWEALTH OF
PENNSYLVANIA, et al.,

CIVIL ACTION NO 3:17-2287

:

v.

:

(JUDGE MANNION)

:
:

Respondent
:
ORDER
Pending before the court is the report of United States Magistrate Judge
William I. Arbuckle which recommends that the instant petition for writ of
habeas corpus be dismissed as untimely. (Doc. 5). No objections have been
filed to the report. Upon review, Judge Arbuckle’s report and recommendation
will be adopted in its entirety.
The petitioner filed the instant petition for writ of habeas corpus on
December 12, 2017, in which he challenges his conviction in the Potter
County Court of Common Pleas. (Doc. 1). Judge Arbuckle reviewed the
petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases, 28
U.S.C. foll. §2254, and ordered the petitioner to show cause as to why his
petition should not be summarily dismissed because he does not meet the “in
custody” requirement and because the petition is untimely.1 (Doc. 3). The
1

Because it is determined that the petition is untimely, the “in custody”
(continued...)

petitioner filed a response to the show cause order on March 19, 2018. (Doc.
4). Even considering the applicable tolling period during which the petitioner
was exhausting his post-conviction remedies, Judge Arbuckle determined that
the instant petition is untimely. As such, on March 15, 2019, he issued the
instant report recommending that the petition be dismissed with prejudice as
untimely. (Doc. 5). The petitioner has filed no objections to Judge Arbuckle’s
report.
When no objections are filed 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 Rule 72.31.
The court has reviewed the record in this case and finds no clear error
of record. The court agrees with the sound reasoning which led Judge
1

(...continued)
requirement was not addressed by Judge Arbuckle and need not be
addressed herein.
2

Arbuckle to conclude that the plaintiff’s petition is untimely. Therefore, the
court will adopt the report of Judge Arbuckle in its entirety.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1)

The report of Judge Arbuckle, (Doc. 5), is ADOPTED IN
ITS ENTIRETY.

(2)

The plaintiff’s habeas petition, (Doc. 1), is DISMISSED
WITH PREJUDICE.

(3)

The Clerk of Court is directed to CLOSE THIS CASE.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: April 9, 2019
17-2287-01.wpd

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