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McCOLE v. SHANNON

United States District Court, M.D. Pennsylvania


September 26, 2005.

MICHAEL McCOLE, Petitioner,
v.
SUPERINTENDENT ROBERT D. SHANNON, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge

ORDER

AND NOW, THIS 22nd DAY OF SEPTEMBER 2005, IT APPEARING TO THE COURT THAT:

1. Petitioner, an inmate at the State Correctional Institution at Frackville ("SCI-Frackville"), Frackville, Pennsylvania, filed this habeas corpus action pursuant to 28 U.S.C. § 2254 on August 10, 2005, challenging his conviction and sentencing in the Philadelphia Court of Common Pleas, (Doc. 1);

  2. The matter was assigned to United States Magistrate Judge Malachy E. Mannion, who issued a Report and Recommendation, (Doc. 4), on August 30, 2005, recommending that the instant petition be transferred to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 2241(d), Petitioner's motion to proceed in forma pauperis ("IFP"), (Doc. 2), be held in reserve for consideration by the United States District Court for the Eastern District of Pennsylvania, (Doc. 4 at 4), and to the extent this action may be viewed as an attempt to appeal a state court civil matter, the action should be dismissed, (id.);

  3. Petitioner did not file objections to the Magistrate Judge's Report and Recommendation and the time for such filing has passed.

  IT FURTHER APPEARING TO THE COURT THAT:

  1. When a magistrate judge makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. See Thomas v. Arn, 474 U.S. 150-53 (1985). Moreover, when no objections are filed, the district court is required only to review the record for "clear error" prior to accepting a magistrate judge's recommendation. See Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998).

  2. Our review of the record reveals no clear error.

  ACCORDINGLY, IT IS HEREBY ORDERED THAT:

1. The Magistrate Judge's Report and Recommendation, (Doc. 4), is ADOPTED;
2. Petitioner's Petition for Writ of Habeas Corpus, (Doc. 1), is TRANSFERRED to the United States District Court for the Eastern District of Pennsylvania;
3. Petitioner's Motion to Proceed IFP, (Doc. 2), is held in reserve for consideration by the United States District Court for the Eastern District of Pennsylvania;
4. To the extent this Petition is an attempt to appeal the state court's decision issued in a civil matter, the action is DISMISSED;
5. There is no basis for the issuance of a certificate of appealability;
6. The Clerk of Court is directed to close this case.
20050926

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