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Rey Henriquez v. David Varano

April 26, 2012

REY HENRIQUEZ,
PETITIONER,
v.
DAVID VARANO, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Baylson, District Judge

MEMORANDUM ON PETITION FOR WRIT OF HABEAS CORPUS

Presently before the Court is a Report and Recommendation issued by Magistrate Judge Jacob P. Hart, denying Petitioner Rey Henriquez's Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254. Upon independent and thorough review, and for the reasons stated below, the Court will affirm the Report and Recommendation and dismiss the Petition.

I. Factual and Procedural History

On March 11, 2005, Mr. Henriquez pleaded nolo contendere in the Court of Common Pleas for Philadelphia County to charges of involuntary deviate sexual intercourse, indecent assault, corrupting the morals of a minor, and other unspecified but related offenses. Commonwealth of Pennsylvania v. Henriquez, No. 2685 EDA 2009, at *1 (Pa. Super. Ct. Apr. 19, 2011) (unpublished decision).

As discussed more fully below, Mr. Henriquez did not appeal his conviction or move to withdraw his plea. Id. at 2. Instead, more than two years later, on November 16, 2007, Mr. Henriquez filed a petition for state collateral review under Pennsylvania's Post-Conviction Relief Act (the "PCRA"). Id. On January 23, 2009, counsel was appointed to pursue Mr. Henriquez's PCRA petition. Id. Mr. Henriquez's appointed counsel filed a no-merit letter, stating that the grounds for the petition were frivolous. Id. On August 31, 2009, the PCRA court ordered that Mr. Henriqeuz's petition be dismissed as untimely. Id. Mr. Henriquez appealed the order to Pennsylvania's Superior Court. Id. On April 19, 2011, the Superior Court affirmed. Id. at 6.

Subsequently, on June 27, 2011, Petitioner, proceeding pro se, filed the instant Petition.*fn1 (ECF No. 1.) On August 29, 2011, the District Attorney for the County of Philadelphia filed a Response. (ECF No. 7.) This Court referred the matter to a magistrate judge. On September 19, 2011, Magistrate Judge Jacob P. Hart issued a Report and Recommendation recommending that the Petition be dismissed as untimely. (ECF No. 8.) On October 4, 2011, Petitioner filed Objections to the Report and Recommendation. (ECF No. 9.)

In the Petition, Mr. Henriquez claims that: (a) his plea was involuntary because the prosecutor breached the plea agreement; (b) he was denied effective assistance of counsel because his trial counsel did not make a meaningful investigation of the facts; (c) the prosecutor failed to disclose exculpatory evidence in the form of the preliminary hearing transcript; and (d) he was denied effective assistance of counsel because his appointed counsel for the PCRA petition failed to make a meaningful investigation of the facts or raise the breach of plea agreement issue to the court. Id. at 9-10.

II. The Report and Recommendation

In the Report and Recommendation, Magistrate Judge Hart concluded that the statute of limitations barred the Petition. In particular, Magistrate Judge Hart found that the limitations period began to accrue on April 11, 2005, thirty days after conviction, and that the last day to file a § 2254 petition was on April 11, 2006, one year later. The Petition was not filed until May or June of 2011.*fn2

Next, Magistrate Judge Hart determined that none of the statutory exceptions to the statute of limitations applied. Specifically, Magistrate Judge Hart concluded that the exception for a "properly filed" state court petition for collateral review did not apply because the PCRA petition was untimely. Also, Magistrate Judge Hart concluded that the exception for newly discovered evidence did not apply because the state court had already rejected the factual predicate for any such claim.

Furthermore, Magistrate Judge Hart determined that the statute of limitations could not be equitably tolled because Petitioner had not exercised due diligence in pursuing post-conviction relief, either at the state or federal level. Petitioner's obligation to exercise due diligence continued throughout this period and Petitioner did not fulfill that obligation in investigating and bringing his claims.

III. Petitioner's Objections to the Report and Recommendation

Petitioner submitted Objections to the Report and Recommendation. In his Objections, Petitioner does not expressly address the statute of limitations or the reasoning for Magistrate Judge Hart's conclusions. In large part, Petitioner merely reasserts the claims asserted in his Petition. However, the Court will construe Petitioner's Objections liberally for purposes of the instant matter.

First, Petitioner contends that his trial counsel improperly failed to file a direct appeal due to a "personal reason." Petitioner also argues that his post-conviction counsel did not raise issues of his trial counsel's ineffectiveness and his ...


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