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Luis Cotto v. Frank J. Tennis

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


January 4, 2011

LUIS COTTO, PETITIONER,
v.
FRANK J. TENNIS, ET AL.,, RESPONDENTS.

The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge

MEMORANDUM ORDER

Petitioner Luis Cotto commenced the instant action by filing a petition for writ of habeas corpus, which was received by the Clerk of Court on July 8, 2009 and referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

On October 9, 2009, this Court entered an order [7] denying Cotto's motion for leave to proceed in forma pauperis.*fn1 By per curiam opinion filed March 4, 2010 and entered on this Court's docket on March 26, 2010 [14], the Third Circuit Court of Appeals affirmed this Court's October 9, 2009 Order denying Cotto in forma pauperis status.

No further activity is reflect on the docket until September 3, 2010, when Magistrate Judge Baxter entered an order [15] directing Cotto, before September 22, 2010, to pay the $5.00 filing fee or face dismissal of his petition for failure to prosecute.*fn2

On December 6, 2010, the Magistrate Judge filed a Report and Recommendation [16] opining that Cotto's petition should be dismissed because of his failure to prosecute the case. This Court adopted the Report and Recommendation on December 27, 2010 [17], noting that no objections to the R&R had been filed.

The following day, Cotto's objections [18] were entered on the docket. Although the objections arrived late to this Court, the envelop accompanying the objections shows that they were submitted in a timely fashion in accordance with the prisoner "mailbox rule." Accordingly, the Court has given the objections full consideration and reconsidered, de novo, the Magistrate Judge's December 6, 2010 Report and Recommendation and my own Memorandum Order [17] adopting the R&R. Having done so, this Court finds that the objections lack merit.

Cotto's only argument in his objections is that the Magistrate Judge erred in concluding that he had failed to pay the $5.00 filing fee. In support of this argument, he has attached a statement from his institutional account showing a payment of $5.00 to this Court on May 7, 2010 and a $24.00 payment to the U.S. Marshal Service on June 2, 2010. Unfortunately for Cotto, however, the payments in question relate not to this action but to another action commenced by him at a separate docket number and styled Luis Cotto v. The Attorney General of the State of Pennsylvania, Case No. 1:10-cv-99- SPB (W.D. Pa.). Accordingly, Cotto has failed to produce any evidence to contradict the Magistrate Judge's conclusion that he has failed to pay the $5.00 filing fee relative to this action. Based upon the foregoing, the following order is entered:

AND NOW, to wit, this 4th day of January, 2011, having construed the Petitioner's objections [18] as a motion for de novo reconsideration of the Magistrate Judge's December 6, 2010 Report and Recommendation [16] and this Court's own Memorandum Order of December 27, 2010 [17],

IT IS ORDERED that the motion for reconsideration is DENIED inasmuch as the Petitioner's objections lack merit and no reason has been presented to the Court that would justify amending its prior order of December 27, 2010. Accordingly, the Court's Order of December 27, 2010 stands as originally issued.

Sean J. McLaughlin

cc:

All parties of record.

U.S. Magistrate Judge Baxter


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