IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
April 6, 2011
MORRIS LAMAS, THE ATTORNEY GENERAL OF PENNSYLVANIA, AND,
THE DISTRICT ATTORNEY OF THE
COUNTY OF LEHIGH, RESPONDENTS.
The opinion of the court was delivered by: Jan E. Dubois, J.
ORDER AND NOW, this 6th day of April, 2011, upon consideration of the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 filed by petitioner, Joseph MacWiliams (Document No. 1, filed October 18, 2010), and after review of the Report and Recommendation of Chief United States Magistrate Judge Thomas J. Rueter dated March 9, 2011 (Document No. 15), there being no objection, and good cause appearing, IT IS ORDERED as follows:
1. The Report and Recommendation of Chief United States Magistrate Thomas J. Rueter dated March 9, 2011, is APPROVED and ADOPTED;
2. The request of petitioner, Jose MacWilliams, to withdraw his Petition for Writ of Habeas Corpus is GRANTED;
3. The Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 filed by Jose MacWilliams is DISMISSED WITHOUT PREJUDICE on the ground that petitioner filed a "mixed petition" which contained both exhausted and unexhausted claims, and now wants to proceed with his petition for relief under the Pennsylvania Post-Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541 et seq., presently pending in state court; and,
4. A certificate of appealability WILL NOT ISSUE for any of petitioner's claims because reasonable jurists would not debate the correctness of this Court's procedural ruling. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
BY THE COURT:
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