ROSA v. UNITED STATES OF AMERICA

Filing 17

MEMORANDUM ORDER - it is Ordered that the instant petition for writ of habeas corpus is DISMISSED for failure to exhaust administrative remedies. It is further Ordered that the Report and Recommendation filed June 27, 2017, (ECF No. 16 ) is ADOPTED as the opinion of the Court. It is further Ordered that, pursuant to Federal Rule of Appellate Procedure 4(a)(1)(B), Petitioner has sixty (60) days after judgment is entered to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure. Federal prisoner appeals from the denial of a Section 2241 habeas proceeding are not governed by the certificate of appealability requirement. See United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on other grounds by Gonzalez v. Thaler, 132 S.Ct. 641 (2012). Therefore, Petitioner need not apply for one with this Court or with the Court of Appeals for the Third Circuit before filing an appeal from the denial of his habeas petition. It is further Ordered that the Clerk of Court mark this case CLOSED, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 7/31/2017. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSE ROSA,
Petitioner,
v.
WARDEN, MOSHANNON VALLEY
CORRECTION INSTITUTION,

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Civil Action No. 3: 17-cv-0010
United States District Judge
Kim R. Gibson

Respondent.

MEMORANDUM ORDER
Pending before the Court is the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241
filed by Petitioner, Jose Rosa. (ECF No. 2). The matter was referred to United States Magistrate
Judge Cynthia Reed Eddy for report and recommendation in accordance with the Magistrate Judges
Act, 28 U.S.C. § 636(b)(l), and Rules 72.1.3 and 72.1.4 of the Local Rules of Magistrate Judges.
The magistrate judge filed a Report and Recommendation (ECF No. 16) on June 27, 2017,
recommending that the Petition for Writ of Habeas Corpus be dismissed without prejudice as
Petitioner has failed to exhaust the administrative remedies available to him. Petitioner was served
with the Report and Recommendation at his listed address and was advised that he had until July 17,
2017, to file written objections to the Report and Recommendation. To date, no objections have
been filed nor has Petitioner sought an extension of time in which file objections.
After de nova review of the petition and documents in the case, together with the Report and
Recommendation, the following order is entered:

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AND NOW,

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this~

day of July, 2017:

IT IS ORDERED that the instant petition for writ of habeas corpus is DISMISSED for
failure to exhaust administrative remedies.

IT IS FURTHER ORDERED that the Report and Recommendation filed June 27, 2017,
(ECF No. 16) is ADOPTED as the opinion of the Court.

IT IS FURTHER ORDERED that, pursuant to Federal Rule of Appellate Procedure
4(a)(l)(B), Petitioner has sixty (60) days after judgment is entered to file a notice of appeal as
provided by Rule 3 of the Federal Rules of Appellate Procedure. Federal prisoner appeals from the
denial of a Section 2241 habeas proceeding are not governed by the certificate of appealability
requirement. See United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en bane), abrogated
on other grounds by Gonzalez v. Thaler, 132 S.Ct. 641 (2012). Therefore, Petitioner need not apply
for one with this Court or with the Court of Appeals for the Third Circuit before filing an appeal
from the denial of his habeas petition.

IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.

Kim R. Gibson
United States District Judge

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cc:

JOSE ROSA, 91067-054
Moshannon Valley Correction Institution
555 Geo Drive
Phillipsburg, PA 16866
(via U.S. First Class Mail)
Michael Comber
Michael Ivory
U.S. Attorney's Office
(via CM/ECF electronic notification)

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