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Andrews v. Rozum

United States District Court, Third Circuit

July 30, 2013

GERALD ROZUM, et al., Defendants.



Petitioner Michael Andrews (“Petitioner”) filed this Petition for Writ of Habeas Corpus (“Habeas Petition”) pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated in the State Correctional Institution in Somerset, Pennsylvania. Consistent with U.S. Magistrate Judge Linda K. Caracappa’s Report and Recommendation, the Court will dismiss the instant petition as untimely.


On November 22, 2000, Petitioner was convicted in the Philadelphia County Court of Common Pleas of second degree murder, robbery, and possessing instruments of crime. R&R 1. Petitioner appealed that decision, and his appeal was dismissed on March 28, 2002 for failure to file a brief. Id. at 2. He then filed a petition to have his appellate rights reinstated nunc pro tunc pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”). Id. The PCRA court granted the petition. Id.

On March 22, 2004, the Pennsylvania Superior Court affirmed Petitioner’s sentence. Id. On March 1, 2005, [1]Petitioner filed a second PCRA petition. Id. The PCRA court dismissed that petition on April 11, 2006. Id. Petitioner requested that his counsel appeal the PCRA court’s decision; however, counsel failed to do so. Id. More than a year later, after Petitioner wrote several letters to the court, it ordered counsel to file a notice of appeal nunc pro tunc. Id. Counsel did so, and the PCRA court denied the appeal as untimely on January 8, 2007. Id. Petitioner and counsel both appealed that denial, but the appeals were dismissed for failure to file a docketing statement. Id.

Petitioner then filed a third PCRA petition. Id. Upon agreement of the parties, on April 5, 2010, the PCRA court reinstated Petitioner’s appellate rights from his April 11, 2006 PCRA petition dismissal (which his attorney failed to appeal despite Petitioner’s requests). Id. at 3. However, a month later, the PCRA court found that it was error to grant reinstatement of Petitioner’s appellate rights and that Petitioner’s third PCRA petition was untimely. Id. Petitioner appealed that decision to the Superior Court, which denied his appeal as untimely on June 10, 2011. Id. On November 14, 2011, the Pennsylvania Supreme Court denied Petitioner’s petition for allowance of appeal. Id.

On December 19, 2011, Petitioner filed the instant Petition for Writ of Habeas Corpus. Id. Since that date, he has filed a fourth PCRA petition, which the PCRA court noted that it intended to dismiss. State Court Docket, at 13. Nevertheless, Petitioner recently amended the petition, and it is still awaiting disposition in the PCRA court. Id. On February 19, 2013, Petitioner filed a motion for a stay and abeyance in this case while his PCRA petition is pending. ECF No. 27.


The district court may refer an application for a writ of habeas corpus to a U.S. Magistrate Judge for a report and recommendation. Section 2254 R. 10; see also 28 U.S.C.

§ 636(b)(1)(B) (2006 & Supp. V 2011). Parties may object to the magistrate judge’s report and recommendation within fourteen days after being served with a copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. R. 72.1(IV)(b). The Court must then “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court does not review general objections. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (“We have provided that § 636(b)(1) requires district courts to review such objections de novo unless the objection is not timely or not specific.” (internal quotation marks omitted)). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. Therefore, the Court will conduct a de novo review of those portions of the Report and Recommendation to which the parties object.

On habeas review, the Court must determine whether the state court’s adjudication of the claims raised was (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d) (2006).


The Report and Recommendation (“R&R”) prepared by Magistrate Judge Caracappa recommends that the Court dismiss Petitioner’s instant habeas petition as untimely. Petitioner raises several objections to the R&R. Although he has raised his objections in the form of a Motion to Alter Judgment instead of in a formal list of objections, the Court will construe the arguments in the motion as objections to the R&R.

Specifically, Petitioner argues that the AEDPA’s one-year limitations period should be equitably tolled because his trial counsel and PCRA counsel abandoned him, leaving him unable to properly pursue habeas relief. In his motion, Petitioner raises three primary arguments: (1) ineffective assistance of PCRA counsel in failing to raise issues on appeal; (2) ineffective assistance of PCRA counsel in failing to file an appeal after Petitioner’s request; and (3) that Petitioner is entitled to a new trial as a result of destroyed evidence. Because Petitioner’s arguments deal primarily with the merits of his claims and not with ...

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