ALLEN v. COMMONWEALTH OF PENNSYLVANIA

Filing 23

MEMORANDUM OPINION indicating that after reviewing de novo the record in this case, and the pleadings and documents filed in this case, together with the R&R, Petitioner's objections, and Respondents' response, the Court is in agreement wit h the recommendation of the R&R and finds that Petitioner's objections do no undermine the recommendation of the Magistrate Judge. The Petition will be denied and an appropriate order will be entered. Signed by Judge Nora Barry Fischer on 1/9/18. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRICE H. ALLEN,
Petitioner,
v.
JAMES ECKARD, Superintendent, and
JOHN W. PECK, District Attorney of
Westmoreland County,
Respondents.

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Civil Action No. 2: 15-cv-0317
United States District Judge
Nora Barry Fischer

MEMORANDUM OPINION
Brice H. Allen, (“Allen” or “Petitioner”), proceeding pro se, has filed a Petition for Writ
of Habeas Corpus by a Person in State Custody (the “Petition”) pursuant to 28 U.S.C. § 2254,
challenging his 2008 conviction for first degree murder. The case was referred to United States
Magistrate Judge Cynthia Reed Eddy for a report and recommendation in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate
Judges.
The Report and Recommendation (“R&R”) filed on October 19, 2017, recommended that
the Petition be dismissed and that a certificate of appealability be denied. [ECF No. 15]. The
parties were informed that Petitioner’s written objections to the R&R were due by November 7,
2017, and that Respondents’ written objections were due by November 3, 2017. On November
9, 2017, Petitioner filed a motion for extension of time to file objections, which the Court
granted and extended the time to file objections to November 27, 2017. [ECF No. 17]. On
November 13, 2017, Petitioner filed an unsigned “Response to the Magistrate Judge’s Report
and Recommendation” in which he raised an objection to the Magistrate Judge’s

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recommendation that the “accumulated trial errors” claim be denied. In the Response, Petitioner
also requested an additional thirty (30) days in which to file a brief in support of his objections.
Petitioner’s request for additional time to file a brief was granted and Petitioner was given an
extension until December 14, 2017, to file remaining objections / brief in support of his
objections. [ECF No. 20]. To date, Petitioner has not filed any supplemental objection(s) or brief.
Respondents filed a “Response to Petitioner’s Objections to the Magistrate Judge’s Report and
Recommendation.” [ECF No. 22]. The matter is ripe for review.
Where, as here, objections have been filed, the court is required to make a de novo
determination about those portions of the R&R to which objections were made. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The district court may accept, reject, or modify the recommended
disposition, as well as receive further evidence or return the matter to the magistrate judge with
instructions.
After reviewing de novo the record in this case, and the pleadings and documents filed in
this case, together with the R&R, Petitioner’s objections, and Respondents’ response, the Court
is in agreement with the recommendation of the R&R and finds that Petitioner’s objections do
no undermine the recommendation of the Magistrate Judge. The Petition will be denied and an
appropriate order will be entered.

DATED: January 9, 2018

BY THE COURT:
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge

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cc:

BRICE H. ALLEN
HK-0223
SCI Huntingdon
1100 Pike Street
Huntingdon, PA 16654
(via U.S. First Class Mail)
James T. Lazar
Westmoreland County District Attorney’s Office
(via ECF electronic notification)

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