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Cortez v. Britton

March 10, 2009

ANGELO CORTEZ, JR., A/K/A ISRAEL POLANCO, JR., PETITIONER,
v.
RANDOLL E. BRITTON, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Paul S. Diamond, J.

ORDER

AND NOW, this 10th day of March, 2009, upon consideration of the Petition for a Writ of Habeas Corpus (Doc. No. 1), Respondent's Answer (Doc. No. 9), the Report and Recommendation of the Magistrate Judge (Doc. No. 12), Petitioner's Objections to the Report and Recommendation (Doc. No. 13), and all related submissions, it is hereby ORDERED and DECREED:

1. Petitioner's Objections to the Report and Recommendation are OVERRULED;

2. The Report and Recommendation is APPROVED and ADOPTED;

3. The Petition for a Writ of Habeas Corpus is DENIED;

4. There is no basis for the issuance of a certificate of appealability; and

5. The Clerk of the Court shall close this matter for statistical purposes.

BACKGROUND

On May 3, 2004, Petitioner plead guilty in state court to robbery, escape, and two counts of aggravated assault, receiving consecutive sentences for an aggregate term of twenty-five to fifty-four years imprisonment. See Commonwealth v. Polanco, No. 1234 MDA 2006, Mem. Op. at 1-2 (Pa. Super. Ct. Feb. 5, 2008). On April 25, 2005, the Pennsylvania Superior Court affirmed Petitioner's judgment of sentence. Id. Petitioner did not seek allocatur.

On March 15, 2006, Petitioner filed a pro se petition under Pennsylvania's Post Conviction Relief Act. 42 Pa. Con. Stat. § 9541. Following the appointment of counsel, Petitioner's counsel filed a "no merit" letter and sought leave to withdraw. On July 7, 2006, the PCRA Court permitted counsel to withdraw and denied Petitioner's pro se PCRA petition. Commonwealth v. Polanco, No. 06-CR-730-1999 (Ct. Com. Pl. Berks July 7, 2006). The Superior Court affirmed on February 5, 2008. Commonwealth v. Polanco, 876 A.2d 468 (Pa. Super. Ct. 2005). The Supreme Court denied allocatur on August 11, 2008. Commonwealth v. Polanco, 954 A.2d 576 (Pa. Aug. 11, 2008).

On September 29, 2008, Petitioner, acting pro se, sought habeas relief in this Court. 28 U.S.C. § 2254. On February 18, 2009, the Honorable L. Felipe Restrepo filed his Report, recommending that I deny the Petition. (Doc. No. 12.) Petitioner objected to the Report and Recommendation on March 6, 2009. (Doc. No. 13.)

STANDARD OF REVIEW

The extent of my review of a Magistrate's report is committed entirely to my discretion. See Jozefick v. Shalala, 854 F. Supp. 342, 347 (M.D. Pa. 1994); see also Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984); Heiser v. Ryan, 813 F. Supp. 388, 391 (W.D. Pa. 1993), aff'd, 15 F.3d 299 (3d Cir. 1994). I may "accept, reject or modify, in whole or in part, the [M]agistrate's findings or recommendations." Brophy v. Halter, 153 F. Supp. 2d 667, 669 (E.D. Pa. 2001). I must review de novo, however, ...


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