United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION (DOC. NO. 26)
J. SCHWAB, UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Calvin Henderson's
Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus (Doc. No. 6). The matter was referred to
United States Magistrate Judge Cynthia Reed Eddy for report
and recommendation in accordance with the Magistrate Judges
Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4
of the Local Rules for Magistrate Judges.
magistrate judge filed a Report and Recommendation (Doc.
No. 26) on February 26, 2018, recommending that the
Petition be dismissed with prejudice as untimely and that a
certificate of appealability be denied. Petitioner filed
timely objections to the report and recommendation. (Doc.
No. 27). Where, as here, objections have been filed, the
court is required to make a de novo determination
about those portions of the R&R to which objections were
made. See28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). The district court may accept, reject, or modify the
recommended disposition, as well as receive further evidence
or return the matter to the magistrate judge with
objections span twenty-seven (27) typewritten pages. Attached
to the objections are an additional eighty-six (86) pages
comprised of the “state court record” and eight
(8) Exhibits. Although the objections are voluminous, there
is a fatal problem with the objections - they fail to address
the issue before the Court, namely whether the Petition is
time-barred and, if so, whether equitable tolling applies to
remedy the untimeliness. The vast majority of the objections
is a reiteration of arguments made to and rejected by the
Pennsylvania Superior Court and Pennsylvania Supreme Court.
SeeDoc. No. 16, Exhs. 20, 22, 30, 33, 59, and 64.
For example, Petitioner continues to argue that the
Commonwealth introduced evidence in his trial which was
garnered from an invalid search warrant and that trial
counsel was ineffective for failing to object to the
introduction of such evidence.
does not object to the finding that his Petition was filed
210 days past AEDPA's one year statute of limitations.
Petitioner seems to argue that he is entitled to relief
pursuant to Federal Rule of Civil Procedure 60(b)(6). See
Obj. at 25. However, Rule 60(b)(6) is not applicable as there
has been no “final judgment, order or proceeding”
issued by this Court. Additionally, Petitioner in his
objections confusingly references an individual who is not a
part of this lawsuit, namely “Satterfield.” For
example on page 25 of the objections, Petitioner states,
“Satterfield asserts in his Rule 60(b)(6) motion . . .
.”. Arguments on behalf of Satterfield are irrelevant
to this lawsuit.
Petitioner the benefit of any doubt, he may be attempting to
argue that he should be exempted from AEDPA's statute of
limitations based on the Supreme Court's ruling in
McQuiggin v. Perkins, 569 U.S. 383 (2013). Obj. at
25. In McQuiggin, the Supreme Court of the United
States recognized that the actual innocence gateway to
federal habeas review developed in Schlup v. Delo,
513 U.S. 298 (1995), extends to cases where a
petitioner's claims would otherwise be barred by the
expiration of the AEDPA one-year statute of limitations. The
Court explained, however, that the “actual
innocence” exception applies only to a “severely
confined category” of cases, namely, those matters
where the petitioner produces “new evidence” that
“shows ‘it is more likely than not that no
reasonable juror would have convicted [the
petitioner]'.” Id. at 395 (quoting
Schlup, 513 U.S. at 329) (bracketed text added in
McQuiggin). The Supreme Court also cautioned that
“tenable actual-innocence gateway pleas are rare[, ],
id. at 396, and that “[t]he gateway should
open only when a petition presents ‘evidence of
innocence so strong that a court cannot have confidence in
the outcome of the trial unless the court is also satisfied
that the trial was free of nonharmless constitutional
error'.” Id. at 401 (quoting
Schlup, 513 U.S. at 316).
Court cannot conclude that this is one of those rare cases
where the actual-innocence gateway applies. Petitioner did
not direct this Court to any information that would qualify
as new evidence of his actual innocence. Therefore, there is
no basis to exempt Petitioner from AEDPA's one-year
statute of limitations under the Supreme Court's holding
these reasons, the report and recommendation will be adopted
as the Opinion of the Court.
the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying
constitutional claim, a [certificate of appealability] should
issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Applying that standard here, jurists of reason would not find
it debatable whether Petitioner's claims should be
dismissed as untimely. Accordingly, a certificate of
appealability will be denied.
de novo review of the petition and Answer and the
documents in this case, together with the Report and
Recommendation, and the Objections thereto, the Court finds
that the report and recommendation should be adopted as the
opinion of the Court. The following Order is entered:
NOW, this 21st day of March, 2018:
IS HEREBY ORDERED that the Petition for Writ of
Habeas Corpus filed by Calvin Henderson is DISMISSED
WITH PREJUDICE as untimely and that a Certificate of
Appealability is DENIED.
IS FURTHER ORDERED that the Report and
Recommendation (Doc. No. 26) dated February 26,
2018, is ADOPTED as the Opinion of the
IS FURTHER ORDERED that the Clerk of Court mark ...