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Nellom v. Commonwealth

United States District Court, E.D. Pennsylvania

November 5, 2019

FRANK NELLOM, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          ORDER

          EDWARD G. SMITH, J.

         AND NOW, this 5th day of November, 2019, this court having entered an order on October 31, 2019, which, inter alia, adopted the report and recommendation issued by United States Magistrate Judge Carol Sandra Moore Wells and dismissed the petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254 without holding a hearing (Doc. No. 21); and the court having noted in this order that no party submitted objections to the report and recommendation and the time for submitting objections had passed, see Oct. 31, 2019 Order at 1, n.1, Doc. No. 21; and

         THE CLERK OF COURT HAVING docketed an objection to the report and recommendation submitted by the petitioner after the clerk had docketed the undersigned's order, see Doc. No. 22;[1] and the petitioner claiming he was transferred from SCI - Camp Hill to SCI - Phoenix on September 18, 2019, and did not receive the report and recommendation until October 11, 2019, see Obj. to R. & R. at 3, Doc. No. 22; and the court, even though the petitioner did not take the appropriate action by seeking an extension of time to file objections upon his receipt of the report and recommendation on October 11, 2019, [2] desiring to ensure that the petitioner's objections about the report and recommendation are considered; and the court interpreting the petitioner's submission as a request that the court extend the time for him to submit his objections; and the court finding that the petitioner's transfer to a different state correctional facility and delayed receipt of the report and recommendation provides good cause to grant the request; accordingly, it is hereby ORDERED as follows:

         1. The petitioner's request that the court extend the time for him to file objections to the report and recommendation is GRANTED. The court will consider the objections to the report and recommendation (Doc. No. 22) to have been timely filed;

         2. The court's October 31, 2019 order (Doc. No. 21) is VACATED;

         3. The objections to the report and recommendation (Doc. No. 22) are OVERRULED;[3]

         4. The Honorable Carol Sandra Moore Wells' report and recommendation (Doc. No. 19) is APPROVED and ADOPTED;

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

         6. 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);[4]

         7. 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. In addition, the clerk of court shall mail a copy of the petitioner's original habeas petition (Doc. No. 1) and amended habeas petition (Doc. No. 4) to him;[5] and

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

---------

Notes:

[1] The clerk of court docketed the order at 2:40 p.m. and the objections at ...


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