Holloway et al v. Bush et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS HEREBY ORDERED that Magistrate Judge Martin C. Carlson's 15 Report and Recommendation is ADOPTED; Holloway's 28 U.S.C. § 2254 petition is DENIED; A certificate of appealability shall not issue; and the Clerk of Court is directed to CLOSE this case. Signed by Honorable Matthew W. Brann on 5/30/2019. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHANE HOLLOWAY,

No. 4:18-CV-00905

Petitioner,

(Judge Brann)

v.

(Magistrate Judge Carlson)

ERIC BUSH,
THE DISTRICT ATTORNEY OF
THE COUNTY OF DAUPHIN and
THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA,
Respondents.
ORDER
MAY 30, 2019
Shane Holloway filed this 28 U.S.C. § 2254 petition challenging his state
court conviction and sentence.1 In April 2019, Magistrate Judge Martin C. Carlson
issued a Report and Recommendation recommending that this Court deny
Holloway’s petition in part as procedurally defaulted, and in part as being without
merit.2 After receiving an extension of time from the Court, Holloway filed timely
objections to the Report and Recommendation in which he contends that Magistrate

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Doc. 1.
Doc. 15.

Judge Carlson erred in concluding that: (1) the sentence imposed was constitutional;
(2) the jury was properly instructed; and (3) counsel was not ineffective.3
Where no objection is made to a report and recommendation, this Court will
review the recommendation only for clear error.4 Conversely, “[i]f a party objects
timely to a magistrate judge’s report and recommendation, the district court must
‘make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.’”5 Regardless of whether
timely objections are made, district courts may accept, reject, or modify—in whole
or in part—the magistrate judge’s findings or recommendations.6
Because Holloway objected to Magistrate Judge Carlson’s recommendations
regarding the constitutionality of the sentence imposed, the jury instructions, and
alleged ineffective assistance of counsel, those recommendations are reviewed de
novo, while the remainder of the Report and Recommendation is reviewed only for
clear error.

After reviewing the record, the Court finds no error—clear or

otherwise—in Magistrate Judge Carlson’s conclusion that Holloway’s claims are

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Docs. 17, 18.
Fed. R. Civ. P. 72(b), advisory committee notes; see Henderson v. Carlson, 812 F.2d 874, 878
(3d Cir. 1987) (explaining that court should in some manner review recommendations
regardless of whether objections were filed).
Equal Emp’t Opportunity Comm’n v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017)
(quoting 28 U.S.C. § 636(b)(1)).
28 U.S.C. § 636(b)(1); Local Rule 72.31.

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procedurally defaulted or without merit.7

Consequently, IT IS HEREBY

ORDERED that:
1.

Magistrate Judge Martin C. Carlson’s Report and Recommendation
(Doc. 15) is ADOPTED;

2.

Holloway’s 28 U.S.C. § 2254 petition (Doc. 1) is DENIED;

3.

A certificate of appealability shall not issue; and

4.

The Clerk of Court is directed to CLOSE this case.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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Although most of Holloway’s objections require no further discussion, the Court notes that
Holloway asserts that his sentence is unconstitutional because the sentencing judge erroneously
believed that a life sentence was mandatory, even though it was not. (Doc. 18 at 2-3).
However, Pennsylvania law clearly “imposes a mandatory sentence of life imprisonment on
[adult] offenders convicted of first-or second-degree murder.” Commonwealth v. Lekka, __
A.3d __, __, 2019 WL 2064541, at *9 n.10 (Pa. Super. Ct., May 10, 2019).

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