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Keith B. Cox v. Superintendent John Kerestes; the District Attorney of the

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


April 1, 2013

KEITH B. COX, PETITIONER
v.
SUPERINTENDENT JOHN KERESTES; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, LYNNE ABRAHAM; AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, TOM CORBETT, RESPONDENTS

The opinion of the court was delivered by: James Knoll Gardner United States District Judge

ORDER

NOW, this 29th day of March, 2013, upon consideration of the following documents:

(1) Petition for Writ of Habeas Corpus by a Person in State Custody, which petition was filed by petitioner*fn1 Keith B. Cox pro se on October 15, 2009 (Document 1), together with,

(A) Memorandum of Law in Support of Petition for Writ of Habeas Corpus (together, Docu- ments 1-1 and 1-2); and

(B) Application for Leave to File Less than the Required Number of Copies of Exhibits and Appeal on Original Trial Record Without an Appendix, Pursuant to Fed.R.App.Proc.30, 31, [and] 32 (Document 1-3);

(2) Motion to Amend by Supplement to Habeas Corpus Petition, Pursuant to Fed.R.Civil Proc.15, which motion was filed by petitioner pro se on May 21, 2012 (Document 10);

(3) Respondents' Answer to Petition for Habeas Relief, which answer was filed August 27, 2010 (Document 14), together with,

(A) Exhibit A, copy of Opinion of Judge James A. Lineberger dated November 21, 1996 and filed in Commonwealth [of Pennsylvania] v. Keith Cox, Case No. 0950, January Term, 1995, in the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Trial Division (Document 14-1);

(B) Exhibit B, copy of Memorandum filed on July 10, 1997 in Commonwealth of Pennsylvania v. Keith Cox, Case No. 02287 Philadelphia 1996, in the Superior Court of Pennsylvania (Document 14-1); and

(C) Exhibit C, copy of Memorandum filed on September 30, 2008 in Commonwealth of Pennsylvania v. Keith Cox, Case No. 1005 EDA 2003, in the Superior Court of Pennsylvania (Document 14-1);

(4) Report and Recommendation of United States Magistrate Judge Lynne A. Sitarski dated and filed on July 22, 2011 (Document 18);

(5) Objection to the Magistrate's Report and Recommendation to Deny Habeas Corpus Petition for Relief, which objection was filed by petitioner pro se on September 28, 2011 (Document 25);

(6) Motion to Stay All Habeas Corpus Proceedings Until Complete Discovery is Provided to Petitioner by the Commonwealth, which motion was filed by petitioner pro se on August 8, 2012 (filed in duplicate at different times as Documents 27 and 29)("Motion to Stay"),

(A) Exhibit A, copies of (i) a September 26, 2008 letter request from petitioner pro se to the prothonotary of the Superior Court of Pennsylvania; (ii) Request for Court Records and Documents, submitted by petitioner pro se to the Superior Court of Pennsylvania;

(iii) per curiam Order of the Superior Court of Pennsylvania filed July 1, 2004 in Commonwealth of Pennsylvania v. Keith Cox, No. 1005 EDA 2003; and (iv) per curiam Order of the Superior Court of Pennsylvania filed January 24, 2006 in Commonwealth of Pennsylvania v. Keith Cox, No. 1005 EDA 2003; *fn2 and

(B) Exhibit B, copy of pages 12 and 13 of the Notes of Testimony of petitioner's June 17, 1996 sentencing hearing; *fn3 and

(7) Motion for Compulsory Disclosure Discovery and Inspection Under Rule 6, which motion was filed by petitioner pro se August 8, 2012 (filed in duplicate at different times as Documents 28 and

30)("Motion for Discovery"), together with,

(A) Affidavit of Keith B. Cox sworn and subscribed by petitioner, and notarized, on August 8, 2012 (Documents 28 and 30);

it appearing after review of this matter that Magistrate Judge Sitarski's Report and Recommendation correctly determined the legal and factual issues presented in the petition for habeas corpus relief,

IT IS ORDERED that the objections of petitioner to the Report and Recommendation of Magistrate Judge Sitarski are overruled. *fn4

IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate Judge Sitarski is approved and adopted.

IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is dismissed without a hearing.

IT IS FURTHER ORDERED that petitioner's Motion to Stay and Motion for Discovery are each denied. *fn5 IT IS FURTHER ORDERED that petitioner has not met statutory requirements to have his case heard, and no reasonable jurist could find this procedural ruling debatable, and because petitioner fails to demonstrate denial of a constitutional right, a certificate of appealability is denied.

IT IS FURTHER ORDERED that the Clerk of Court shall mark this matter closed for statistical purposes.

BY THE COURT:

JAMES KNOLL GARDNER


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