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Przybyszewski v. Commonwealth

United States District Court, E.D. Pennsylvania

May 21, 2015



PAUL S. DIAMOND, District Judge.

Petitioner Theodore Przybyszewski, proceeding pro se, has objected to Magistrate Judge Rueter's Report and Recommendation dismissing Petitioner's claims for § 2254 relief as time-barred. (Doc. Nos. 48, 50); 28 U.S.C. § 2254. For the following reasons, I will overrule Petitioner's objections, approve and adopt the Report, and dismiss the Petition as time-barred and as a "mixed" Petition.

I. Background

On September 9, 1987, Petitioner pled guilty in Pennsylvania state court to first-degree murder and possession of an instrument of crime. He was twenty-four years old when he committed those offenses. He received a sentence of life imprisonment after the Commonwealth, in exchange for Petitioner pleading guilty, agreed not to seek the death penalty. Petitioner has since initiated numerous collateral challenges in state court and civil rights actions in this Court. (Doc. No. 48 at 1-2, 4 n.2); 42 U.S.C. § 1983.

On February 12, 2014, he filed the instant 240-page § 2254 Petition. (Doc. No. 14); 28 U.S.C. § 2254. Petitioner contends, inter alia, that: (1) he was incompetent when he pled guilty; and (2) his sentence was unconstitutional under the holding of Miller v. Alabama that a sentence of "mandatory life without parole for those under the age of eighteen at the time of their crimes violates the Eighth Amendment." 132 S.Ct. 2455, 2460 (2012). I referred the Petition to Magistrate Judge Rueter for a Report and Recommendation, and on February 25, 2015, Judge Rueter recommended dismissing the Petition as time-barred by some seventeen years. (Doc. No. 48 at 6.)

One week earlier, on February 18, Petitioner filed a Notice of Appeal. (Doc. No. 43.) He did not indicate which order he was appealing, however.

On March 13, 2015, Petitioner objected to Judge Rueter's Report in a 193-page pro se filing, which he supplemented with hundreds of pages of exhibits. (Doc. Nos. 50, 52, 55-60.) He argues, in relevant part, that his Petition was timely because he could not challenge his conviction until November 24, 2009, when he received medication that controlled his purported mental illness. After filing his objections, on April 16, Petitioner asked me to stay this matter pending the resolution of a state collateral proceeding. (Doc. No. 69.)

II. Standard of Review

In reviewing the Magistrate Judge's Report, I must "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)(C). I may "accept, reject, or modify, in whole or in part" the Magistrate Judge's findings or recommendations. Id. As to those portions to which no objections have been made, I must "satisfy [myself] 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 Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining the district court's responsibility "to afford some level of review" when no objections have been made).

III. Discussion


As I have discussed, Petitioner did not indicate which order he had appealed on February 18, 2015. In any event, because neither Judge Rueter nor I had issued an appealable order before February 18, I believe I retain jurisdiction over this matter. (See Doc. Nos. 2, 4, 6, 9, 12, 13, 15, 22, 26, 28, 32, 34, 37 (orders extending deadlines, amending case caption, waiving Petitioner's obligation to file copies, staying proceedings, referring the matter to Judge Rueter, and addressing Petitioner's in forma pauperis status)); see Mondrow v. Fountain House, 867 F.2d 798, 800 (3d Cir. 1989) ("Unlike a timely notice of appeal, a premature notice of appeal does not divest the district court of jurisdiction."); United States v. Wilkes, 368 F.Supp.2d 366, 367 (M.D. Pa. 2005) ("[A] district court may continue to exercise authority over a case after the filing of a notice of appeal... if the appeal is patently frivolous [or] relates to a non-appealable order or judgment." (footnote omitted)).

Statute of Limitations

Because Petitioner's conviction was final before AEDPA became effective on April 24, 1996, Petitioner must have sought § 2254 relief by April 23, 1997. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998) (AEDPA established a one-year "grace period" for petitioners whose convictions became "final" before the AEDPA became effective); Douglas v. Horn, 359 F.3d 257, 261 ...

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