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Johnnie Simmons v. David Varand and Pa State Attorney General

April 15, 2011

JOHNNIE SIMMONS,
PETITIONER,
v.
DAVID VARAND AND PA STATE ATTORNEY GENERAL, RESPONDENTS.



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

Hon. Malachy E. Mannion

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 Malachy E. Mannion (Doc. 28), filed on March 28, 2011, which recommends that dismiss Petitioner Johnnie Simmons'("Petitioner" or "Simmons") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 as time-barred. Petitioner filed objections to the R&R on April 14, 2011. (Doc. 29). Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's recommendation, dismiss the petition as time-barred, and close this case.

I. 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).

II. BACKGROUND

Simmons is an inmate at the State Correctional Institution, Coal Township, Pennsylvania. On March 10, 2004, following a jury trial, Simmons was convicted of possession with intent to deliver a controlled substance in violation of 35 P.S. § 780-113(a)(30) and criminal conspiracy in violation of 18 Pa. C. S. § 903.

On May 7, 2004, Simmons filed a notice of appeal to the Superior Court of Pennsylvania. On March 11, 2005, the Superior Court affirmed Petitioner's sentence. On April 8, 2005, Simmons filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. The petition was denied on July 7, 2005.

On August 8, 2005, Simmons filed his first post-conviction petition. After a hearing conducted on November 4, 2005, the petition was denied. Simmons filed an appeal on November 28, 2005. The Superior Court affirmed the denial of the post-conviction petition on April 4, 2007. Simmons did not seek review from the Pennsylvania Supreme Court.

Thereafter, Simmons filed three more post-conviction petitions. These petitions were denied as untimely or for want of jurisdiction. All of the denials were affirmed by the Superior Court.

III. DISCUSSION

Magistrate Judge Mannion recommends that the petition be denied because it is untimely. For the reasons that follow, we agree.

Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended the federal habeas statute by imposing a statute of limitations on prisoners requesting habeas corpus relief pursuant to 28 U.S.C. ยง 2254. The statute of limitations is ...


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