United States District Court, M.D. Pennsylvania
September 26, 2005.
MICHAEL McCOLE, Petitioner,
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
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
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
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
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.
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