Filing 71

ORDER denying 61 Petitioner's Motion as to Whether new law Substantive new constitutional Retroactive law; pursuant to Senate bill ; adopting 62 Report and Recommendation. The Court hereby orders the following: (1) The Court ADOPTS the 62 Report and Recommendation; (2) Petitioners 61 Motion is DENIED; (3) A certificate of appealability is DENIED; and (4) This case is CLOSED. Signed by Judge Barbara Rothstein on 3/8/2017. (nk)

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA RONALD G. DANDAR, ) ) Petitioner, ) ) v. ) ) COMMONWEALTH, et al., ) ) Respondents. ) ____________________________________) Civil Action No. 1:02-cv-00222-BR-SPB MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION Before the Court is the Report and Recommendation of Magistrate Judge Susan Paradise Baxter denying Petitioner Ronald G. Dandar’s Motion, (Doc. No. 61), and certificate of appealability. 1 After reviewing the Report and Recommendation, Petitioner’s Objections, and the record, the Court ADOPTS the Report and Recommendation. The Court’s reasoning follows: In a well-reasoned opinion, Magistrate Judge Baxter concluded that Petitioner’s pleading, although styled as a Rule 60(b) Motion, is, in fact, an attempt to file a second or successive habeas petition without having obtained leave from the appellate court to do so. (Doc. No. 62, at 6-7). Out of an abundance of caution, Magistrate Judge Baxter additionally determined that if Petitioner filed a true Rule 60(b) Motion, the claims set forth therein lack merit. (Id.). Petitioner’s only “objection” to the Report and Recommendation is a request that Magistrate Judge Baxter recuse herself for violating “the United States Constitution, the [Pennsylvania] Constitution, [and the] Rules of Federal Court” when she extended Petitioner’s deadline to file objections by an “unconstitutional ten days,” rather than twenty-one days. (Doc. No. 70). Assuming arguendo that Petitioner’s objection triggered de novo review pursuant to 28 U.S.C. § 636(b)(1)(C) (2012), the Court finds no reason to disturb Magistrate Judge Baxter’s 1 The relevant procedural background is set forth in Magistrate Judge Baxter’s Report and Recommendation. (Doc. No. 62). conclusions. Upon reviewing Petitioner’s Motion, the Court agrees that Petitioner’s Motion constitutes an effort to file a second or successive habeas petition. Because Petitioner Dandar did not obtain leave to file a second or successive habeas petition from the court of appeals as required by 28 U.S.C. § 2244(b)(3)(A), the Court lacks subject matter jurisdiction over the unauthorized petition. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (per curiam). Although the Court may transfer, rather than dismiss, a habeas petition that has not been authorized by the appellate court, the Court agrees with Magistrate Judge Baxter’s assessment that “it would be a waste of time and judicial resources to transfer the instant motion” given Petitioner’s numerous applications with the Third Circuit that have all resulted in denial. (Doc. No. 62, at 6 n.6). The Court further finds that even if Petitioner’s pleading constituted a Rule 60(b) Motion, the claims set forth therein are meritless. Accordingly, it is HEREBY ORDERED that: 1. The Court ADOPTS the Report and Recommendation; 2. Petitioner’s Motion is DENIED; 3. A certificate of appealability is DENIED; and 4. This case is CLOSED. IT IS SO ORDERED. Dated: March 8, 2017 BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE 2

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