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Spencer v. Grace

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


May 16, 2007

DELOS D. SPENCER, PETITIONER,
v.
JAMES L. GRACE, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Judge Kosik

MEMORANDUM AND ORDER AND NOW, THIS 16th DAY OF MAY, 2007, IT APPEARING TO THE COURT THAT:

[1] On February 9, 2007, Delos D. Spencer ("Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254;

[2] the matter was assigned to United States Magistrate Judge J. Andrew Smyser;

[3] the respondents filed a response to the petition on March 8, 2007; [4] the Magistrate Judge filed a Report and Recommendation on April 17, 2007, suggesting that we dismiss the instant habeas petition as untimely;

[5] neither Petitioner, nor the respondents filed objections to the Report and Recommendation.

IT FURTHER APPEARING THAT:

[6] If no objections are filed to a Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review of the plaintiff's claims. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S.Ct. 466 (1985). Nonetheless, the usual practice of the district court is to give "reasoned consideration" to a magistrate judge's report prior to adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987);

[7] having examined the Magistrate Judge's Report and Recommendation, we agree with his recommendation to dismiss the instant petition for writ of habeas corpus;

[8] we concur with the Magistrate Judge's analysis of the issues raised in the habeas petition and find the Magistrate Judge's review of the record to be comprehensive;

[9] specifically, we agree with the conclusion that Petitioner filed the habeas action beyond the one-year period of limitation for filing an application for writ of habeas corpus set forth in 28 U.S.C. § 2244(d)(1).

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

[1] the Report and Recommendation of Magistrate Judge J. Andrew Smyser dated April 17, 2007, (Doc. 11) is adopted;

[2] the petition for writ of habeas corpus (Doc. 1) filed on February 9, 2007, is dismissed;

[3] the Clerk of Court is directed to close this case, and forward a copy of this Memorandum and Order to the Magistrate Judge; and,

[4] based on the court's conclusion herein, there is no basis for the issuance of a certificate of appealability.

Edwin M. Kosik United States District Judge

20070516

© 1992-2007 VersusLaw Inc.



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