United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge Dated:
Hardison, an inmate confined at the State Correctional
Institution Coal Township, Northumberland County,
Pennsylvania, filed this pro se habeas corpus
petition pursuant to 28 U.S.C. §2254. (Doc.
1). He attacks his July 1978 sentence of life
imprisonment imposed by the Court of Common Pleas for Dauphin
County, Pennsylvania, for second degree murder and related
charges. Presently before the court is the Report and
Recommendation of Judge Mehalchick in which she recommends
that the petition be dismissed as untimely pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) one-year statute of limitations. (Doc.
12). No objections have been filed to Judge
Mehalchick's report and the time in which they were due
has expired. The court will adopt Judge Mehalchick's
report and dismiss the petition as time-barred without
directing it to be served on respondents.
objections are timely filed to the report and recommendation
of a magistrate judge, the district court must review de novo
those portions of the report to which objections are made. 28
U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d
193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of
the district judge, and the court may rely on the
recommendations of the magistrate judge to the extent it
deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499
(M.D.Pa. 2000) (citing United States v.
Raddatz, 447 U.S. 667, 676 (1980)).
those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good
practice, "satisfy itself 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 also Univac Dental Co. v.
Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987) (explaining judges should give some review
to every report and recommendation)). Nevertheless, whether
timely objections are made or not, the district court may
accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
28 U.S.C. §636(b)(1); Local Rule 72.31.
giving petitioner notice and an opportunity to be heard as to
why his petition should not be dismissed as untimely, (Doc.
4), and after considering petitioner's response,
(Doc. 7), Judge Mehalchick finds that it plainly
appears from the petition that it is time-barred. Habeas
corpus petitions are subject to summary dismissal pursuant to
Rule 4 (“Preliminary Review; Serving the Petition and
Order”) of the Rules Governing Section 2254 Cases in
the United States District Courts, 28 U.S.C. foll. §2254
(1977) (applicable to §2241 petitions through Rule
1(b)). See, e.g., Patton v. Fenton, 491
F.Supp. 156, 158-59 (M.D.Pa.1979). Rule 4 provides, in
pertinent part, “If it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
petitioner.” A petition may be dismissed without review
of an answer “when the petition is frivolous, or
obviously lacking in merit, or where ... the necessary facts
can be determined from the petition itself.” Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970),
cert. denied, 400 U.S. 906 (1970). The Allen Court
also stated that “the District Court has a duty to
screen out a habeas corpus petition which should be dismissed
for lack of merit on its face.” Id.
the complete background of this case is detailed in Judge
Mehalchick's report, it will not be repeated herein. A
state prisoner requesting habeas corpus relief pursuant to 28
U.S.C. §2254 must adhere to a statute of limitations
provided in 28 U.S.C. §2244(d)(1). See Jones v.
Morton, 195 F.3d. 153, 157 (3d Cir. 1999). Petitioner
contends that his petition is timely filed since it is based
on newly recognized constitutional rights recognized in the
March 2012 Supreme Court decisions of Lafler v. Cooper, 566
U.S. 156, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 566
U.S. 133, 132 S.Ct. 1399 (2012). Thus, petitioner maintains
that his the one-year statute of limitations for his petition
should commence to run on March 21, 2012, pursuant to 28
U.S.C. §2244(d)(1)©, which provides that the time
period may begin to run on “the date on which the
constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review.” The court agrees with Judge
Mehalchick that the two cases upon which petitioner relies do
not establish a newly recognized constitutional right. As
Judge Mehalchick states, “both Frye and
Lafler merely apply the existing right to effective
assistance of counsel that was established in Strickland v.
Washington, 466 U.S. 668 (1984).” (Doc. 12, at
5) (citations omitted). Thus, petitioner's habeas
petition is time-barred. See Fernsler v. Lebanon
County, PA, 2015 WL 3838184 (M.D.Pa. June 22, 2015) (citing
Navar v. Warden Fort Dix FCI, 569 Fed.Appx. 139, 140 n. 1 (3d
Cir. 2014) (“[N]either Lafler nor
Frye announced a new rule of constitutional law, as
required for authorization to file a second or successive
section 2255 motion. Each case merely clarified how
Strickland [ ], applies in the plea negotiation
context.”); Sanchez v. Burns, 24 F.Supp.3d 441, 444
habeas petitioner may also be entitled to equitable tolling
of the AEDPA statute of limitations. See Merritt v.
Blaine, 326 F.3d 157, 161 (3d Cir.2003), cert.
denied, 540 U.S. 921 (2003) (holding that AEDPA's
time limit is subject to the doctrine of equitable tolling, a
judicially crafted exception). Judge Mehalchick, (Doc.
12, at 7-8), correctly determines that petitioner
has not met his burden of demonstrating his entitlement to
equitable tolling and, that he has not shown due diligence.
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
Cooper v. Price, 82 Fed.Appx. 258, 260 (3d Cir.
2003). Nor are there any extraordinary circumstances in this
case which warrant equitable tolling. See Merritt,
326 F.3d at 161. As such, equitable tolling is inapplicable
in this matter.
when a district court denies a habeas petition on procedural
grounds without reaching the underlying constitutional
claims, a certificate of appealability should issue only if
(1) the petition states a valid claim for the denial of a
constitutional right, and (2) reasonable jurists would find
it debatable whether the district court was correct in its
procedural ruling. Slack v. McDaniel, 529 U.S. 473,
484 (2000). In this case, reasonable jurists could not
disagree that the instant petition is time-barred. It is
statutorily barred, and neither statutory nor equitable
tolling apply to the petition.
light of the foregoing, the petition for writ of habeas
corpus, (Doc. 1), will be DISMISSED, Judge
Mehalchick's report will be ADOPTED, (Doc. 12),
and the ...