United States District Court, E.D. Pennsylvania
G. SMITH, J.
NOW, this 31st day of October, 2019, after
considering the petition for a writ of habeas corpus under 28
U.S.C. § 2254 filed by the pro se petitioner,
Frank Nellom (Doc. No. 4), the response in opposition to the
petition filed by the respondents (Doc. No. 17), and United
States Magistrate Judge Carol Sandra Moore Wells' report
and recommendation (Doc. No. 19); accordingly, it is hereby
ORDERED as follows:
clerk of court is DIRECTED to
REMOVE this action from civil suspense and
RETURN it to the court's active docket;
Honorable Carol Sandra Moore Wells' report and
recommendation (Doc. No. 19) is APPROVED and
ADOPTED with additions listed in the
petitioner's petition for a writ of habeas corpus (Doc.
No. 4) is DISMISSED WITHOUT AN EVIDENTIARY
petitioner has not made a substantial showing of the denial
of a constitutional right and is therefore not entitled to a
certificate of appealability, 28 U.S.C. §
clerk of court shall mail the petitioner two blank copies of
the court's current standard form for filing a petition
pursuant to 28 U.S.C. § 2254; and
clerk of court shall mark this case as
court also notes that the petitioner had originally commenced
this action by submitting a section 2254 petition that was
not on the proper form. Doc. No. 1. The court ordered him to
file a new petition on the proper form, and the petitioner
complied with this order. Doc. Nos. 3, 4. Although the
petitioner filed a section 2254 petition on the proper form,
he attached a copy of his original petition to that form.
See Doc. No. 4 at ECF pp. 18-47.
 Since neither party filed objections
to Judge Wells' report and recommendation (with said
objections having been due by October 11, 2019, for the
respondents, and October 15, 2019, for the petitioner), the
court need not review the report before adopting it.
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987). Nonetheless, “the better practice is for the
district judge to afford some level of review to dispositive
legal issues raised by the report.” Id. As
such, the court will review the report for plain error.
See Oldrati v. Apfel, 33 F.Supp.2d 397, 399 (E.D.
Pa. 1998) (“In the absence of a timely objection, . . .
this Court will review [the magistrate judge's] Report
and Recommendation for clear error.” (internal
quotation marks omitted)). The court may “accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). The court has reviewed Judge
Wells' report for plain error and has found none.
In Judge Wells' report, she notes that the
petitioner (albeit confusingly) appears to request that the
court remove his 1991 rape conviction in Commonwealth v.
Nellom, No. CP-51-CR-412681-1987 (Phila. Cty. Ct. Com.
Pl.) from his record. See R. & R. at 2 (citing
habeas petition at 6), Doc. No. 19. Judge Wells correctly
explains that the petitioner is no longer “in
custody” under that conviction as he completed his
sentence for that conviction in January 2009. See
id.; see also Nellom v. Vaughn, Civ. A. No.
01-5416, 2008 WL 150842, at *2 (E.D. Pa. Jan. 14, 2008)
(explaining that the petitioner had a release date of January
14, 2009). In addition, Judge Wells accurately explains
“a state conviction is no longer open to . . .
attack in its own right because the defendant failed to
[successfully] pursue those remedies [but] that conviction is
later used to enhance a criminal sentence, the defendant
generally may not challenge the enhanced sentence through a
petition under § 2254 on the ...