Opinion
CA No. 2: 20-cv-1049
11-05-2020
NATHAN ROWSHAWN HOYE, Petitioner, v. ATTORNEY GENERAL OF PENNSYLVANIA, WARDEN, SCI-SOMERSET, and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.
MEMORANDUM OPINION
Pending before the court are the petition for writ of habeas corpus filed by petitioner Nathan Hoye (ECF No. 7) and supplements to the petition (ECF Nos. 9 and 11), and the report and recommendation ("R&R") of the magistrate judge, which recommended that the petition for writ of habeas corpus be dismissed pre-service without prejudice for failure to exhaust state remedies. (ECF No. 14). Petitioner was served with the R&R at his listed address and advised that written objections were due by October 13, 2020. To date, petitioner has not filed any objections or sought an extension of time in which to do so.
If a party does not file timely objections to a magistrate judge's report and recommendation, the party may lose its right to de novo review by the district court, although the court must still give "reasoned consideration" to the magistrate judge's report before adopting it. Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987). The district court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes. --------
As noted in the R&R, petitioner has pending an appeal before the Superior Court of Pennsylvania challenging the validity of his sentence at CP-02-CR-0004077-2018. As such, the claims presented in this habeas petition are unexhausted, but not procedurally defaulted as they remain pending in state court. The court has reviewed the matter and concludes that the R&R correctly analyzes the issues and makes a sound recommendation. Accordingly, after de novo review of the petition and documents in the case, together with the R&R, the petition for writ of habeas corpus will be dismissed without prejudice for failure to exhaust state remedies.
Jurists of reason would not find it debatable that the petition should be dismissed without prejudice. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability will be denied. The denial of a certificate of appealability does not prevent petitioner from appealing the order denying his petition so long as he seeks, and obtains, a certificate of appealability, from the court of appeals. See Fed.R.App.P. 22(b)(1), (2). November 5, 2020
BY THE COURT:
/s/ Joy Flowers Conti
Joy Flowers Conti
Senior United States District Judge cc: NATHAN ROWSHAWN HOYE
NX8604
SCI SOMERSET
1600 WALTERS MILL ROAD
SOMERSET, PA 15510
(via U.S. First Class Mail)