Lundy v. Brittain

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

STEVEN LUNDY, :

Petitioner : CIVIL ACTION NO. 1:22-578

v. : (JUDGE MANNION)

KATHY BRITTAIN, et al., :

:

Respondent

O R D E R

Pending before the court is the report and recommendation of

Magistrate Judge Martin C. Carlson which recommends that the petition for

writ of habeas corpus filed in the above-captioned matter be denied and no

certificate of appealability should issue. (Doc. 6). The petitioner has filed

objections to the report. (Doc. 7).

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. '636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the 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; see also

Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.

2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)

(explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

§636(b)(1); Local Rule 72.31.

Petitioner filed the instant habeas corpus action seeking to challenge

his conviction in the Court of Common Pleas of Monroe County for

strangulation. Commonwealth v. Lundy, CP-45-CR0003000-2017. This is

petitioner’s second attempt at challenging this conviction by way of a habeas

corpus petition. See Lundy v. Brittain, No. 1:21-CV-1259, 2021 WL 5442243,

(M.D.Pa. Aug. 23, 2021).1 Judge Carlson recommends that the instant

petition be dismissed pursuant to Rule 4 of the Rules Governing Section

2254 Cases. 28 U.S.C. §2254. To this extent, Judge Carlson concludes that

this court lacks jurisdiction over the instant action as it is a second or

successive petition for which petitioner has failed to meet the procedural

prerequisites for filing. See 28 U.S.C. §2244(a)-(b). Moreover, Judge

Carlson concludes that the petition substantively lacks merit as there are no

factual grounds justifying habeas corpus relief.

Although the petitioner has filed objections, he does not substantively

challenge the findings or conclusions in Judge Carlson’s report. Upon

review, the court finds no clear error of record and agrees with the sound

reasoning which led Judge Carlson to his conclusions. As such, the court will

adopt Judge Carlson’s report and recommendation as the decision of the

court.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

(1) The report and recommendation of Judge Carlson (Doc. 6) is

ADOPTED IN ITS ENTIRETY as the decision of the court.

(2) The petition for writ of habeas corpus (Doc. 1), is DENIED.

1As noted by Judge Carlson, petitioner is a prolific pro se litigant in this

court. (Doc. 6, p. 2, n. 1).

(3) A certificate of appealability shall not issue.

(4) The Clerk of Court is directed to CLOSE THIS CASE.

s/ Malachy E. Mannion

United States District Judge

DATE: June 27, 2022

22-578-01