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Armolt v. Kerestes

June 25, 2010

JEFFREY ARMOLT, PETITIONER,
v.
SUPERINTENDENT JOHN KERESTES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hon. John E. Jones III

Hon. J. Andrew Smyser

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge J. Andrew Smyser (Doc.13), filed on June 15, 2010 which recommends that we dismiss Petitioner Jeffrey Armolt's ("Petitioner" or "Armolt") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed objections to the R&R on June 24, 2010. (Docs. 14 and 15). Accordingly, this matter is ripe for our review.

I. PROCEDURAL AND FACTUAL BACKGROUND

Petitioner was convicted in the Court of Common Pleas of Adams County upon his plea of guilty to three counts of rape charged under 18 Pa. C.S.A. § 3121(a)(6), engaging in sexual intercourse with a complainant less than 13 years of age. On April 12, 2004, Armolt was sentenced on each count to a term of imprisonment of five to ten years. The three sentences were imposed to run consecutively. Thus, Armolt is serving a fifteen (15) to thirty (30) year sentence.

The pro se petition raises five grounds for habeas corpus relief: (1) that his guilty plea was unlawfully induced; (2) that his state law right to a speedy trial was violated; (3) that there was "[p]ossible collaboration by trial counsel and a layered ineffective assistance of counsel by governmental interference, or constructive deprivation thereof" (4) "Prosecutorial Misconduct, and Proper Time Credit"; and (5) lack of meaningful appellate review.

On June 15, 2010, Magistrate Judge Smyser issued a R&R recommending that the petition be dismissed because the Petitioner did not exhaust his administrative remedies and because the petition is untimely. (Doc. 13). As noted above, on June 24, 2010, Petitioner filed objections and a memorandum of law in support thereof. (Docs. 14 and 15).

II. STANDARD OF REVIEW

When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

III. DISCUSSION

As correctly noted by Magistrate Judge Smyser, a person convicted in state court who seeks to present a claim in federal court pursuant to 28 U.S.C. § 2254 that his or her custody is in violation of the Constitution or laws of the United States must, under 28 U.S.C. § 2244(d)(1)(A) do so within one year after the judgment. There are four different ways to trigger the start of the one year statute of limitations period for section 2254 petitions. They are:

(1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time seeking such review;

(2) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...


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