Opinion
Case No. 3:13-cv-13-KRG-KAP
05-19-2020
THOMAS ALLEN DAVIS, JR., Petitioner, v. DANIEL BURNS, WARDEN, S.C.I. FOREST, Respondent
Report and Recommendation
Recommendation
Petitioner, in his latest motion at ECF no. 43, again seeks re-opening of the judgment in this matter. The motion has been assigned to me under 28 U.S.C.§ 636(b)(3). As discussed below I recommend the grant of this motion.
Report
I filed a Report and Recommendation on February 18, 2020, recommending that the petitioner's petition for a writ of habeas corpus be denied without a certificate of appealability. ECF no. 34. A copy was mailed by the Clerk's Office on February 19, 2020. After the time for filing objections had expired without response, the Court adopted the recommendation and denied the petition on March 12, 2020, by an order at ECF no. 35.
Petitioner moved to re-open the matter, ECF no. 36, stating that he had never received the Report and Recommendation. On March 30, 2020, the Court vacated its judgment, but after de novo review of the record denied the petition. ECF no. 37.
The matter was then ripe for an appeal, and petitioner filed a timely notice of appeal on April 10, 2020. ECF no. 38.
Then the original of my Report and Recommendation came back as I documented on May 12, 2020 at ECF no. 42, confirming that petitioner had not received my Report and Recommendation as sent. Petitioner's current motion, ECF no. 43, alleges that the markings on the envelope indicating that the Report and Recommendation was "refused by inmate" are false.
Strictly speaking, because the Court conducted de novo review as stated in its order at ECF no. 35, this matter is ready for the Court of Appeals to consider, and petitioner would be free to make any argument there that he wishes to make here. However, there may be a benefit to petitioner to filing objections because it is always possible that the objections might make some point that was overlooked.
Accordingly, I recommend that petitioner be given leave to file objections, and when they are received that the Court vacate its judgment and consider the record de novo again in light of the new objections. Petitioner's objections should be filed on or before June 20, 2020. If no objections are filed the Court should not vacate its judgment, and the matter should proceed on appeal.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. The parties are advised that in the absence of timely and specific objections any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017). DATE: 19 May 2020
/s/_________
Keith A. Pesto,
United States Magistrate Judge Notice to counsel of record by ECF and by U.S. Mail to:
Thomas Allen Davis JE-7341
S.C.I. Albion
10745 Route #18
Albion, PA 16475-0001