Spencer v. Grace

Full title: DELOS D. SPENCER, Petitioner, v. JAMES L. GRACE, et al., Respondents

Court: United States District Court, M.D. Pennsylvania

Date published: May 16, 2007

CIVIL ACTION NO. 3:07-CV-0256 (M.D. Pa. May. 16, 2007)

Opinion

CIVIL ACTION NO. 3:07-CV-0256.

May 16, 2007

MEMORANDUM AND ORDER

EDWIN KOSIK, Senior District Judge

AND NOW, THIS 16^th DAY OF MAY, 2007, IT APPEARING TO THE COURT THAT:

On February 9, 2007, Delos D. Spencer ("Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254;

the matter was assigned to United States Magistrate Judge J. Andrew Smyser;

the respondents filed a response to the petition on March 8, 2007;

the Magistrate Judge filed a Report and Recommendation on April 17, 2007, suggesting that we dismiss the instant habeas petition as untimely;

neither Petitioner, nor the respondents filed objections to the Report and Recommendation.

IT FURTHER APPEARING THAT:

If no objections are filed to a Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review of the plaintiff's claims. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S.Ct. 466 (1985). Nonetheless, the usual practice of the district court is to give "reasoned consideration" to a magistrate judge's report prior to adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987);

having examined the Magistrate Judge's Report and Recommendation, we agree with his recommendation to dismiss the instant petition for writ of habeas corpus;

we concur with the Magistrate Judge's analysis of the issues raised in the habeas petition and find the Magistrate Judge's review of the record to be comprehensive;

specifically, we agree with the conclusion that Petitioner filed the habeas action beyond the one-year period of limitation for filing an application for writ of habeas corpus set forth in 28 U.S.C. § 2244(d)(1).

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

the Report and Recommendation of Magistrate Judge J. Andrew Smyser dated April 17, 2007, (Doc. 11) is adopted;

the petition for writ of habeas corpus (Doc. 1) filed on February 9, 2007, is dismissed;

the Clerk of Court is directed to close this case, and forward a copy of this Memorandum and Order to the Magistrate Judge; and,

based on the court's conclusion herein, there is no basis for the issuance of a certificate of appealability.