Nellom v. Commonwealth

          ORDER

          EDWARD G. SMITH, J.

         AND 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:

         1. The clerk of court is DIRECTED to REMOVE this action from civil suspense and RETURN it to the court's active docket;

         2. The Honorable Carol Sandra Moore Wells' report and recommendation (Doc. No. 19) is APPROVED and ADOPTED with additions listed in the footnote below;^[1]

         3. The petitioner's petition for a writ of habeas corpus (Doc. No. 4) is DISMISSED WITHOUT AN EVIDENTIARY HEARING;

         4. The 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. § 2253(c)(2);^[2]

         5. The 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;^[3] and

         6. The clerk of court shall mark this case as CLOSED.

         This 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.

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Notes:

^[1] 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 that

“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 ...