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Banks v. Clark

United States District Court, E.D. Pennsylvania

May 10, 2018

RILEY BANKS, Petitioner,
v.
MICHAEL CLARK, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          ORDER

          EDWARD G. SMITH, J.

         AND NOW, this 10th day of May, 2018, after considering the petition for a writ of habeas corpus filed by the pro se petitioner, Riley Banks (Doc. No. 1), the report and recommendation filed by the Honorable Timothy R. Rice on January 31, 2018 (Doc. No. 3), and the objections to the report and recommendation timely filed by the petitioner on April 7, 2018 (Doc. No. 7), [1] it is hereby ORDERED as follows:

1. The clerk of court is DIRECTED to remove this action from civil suspense and return it to the court's active docket;
2. The petitioner's objections to the report and recommendations (Doc. No. 7) are OVERRULED;[2]
3. The Honorable Timothy R. Rice's report and recommendation (Doc. No. 3) is APPROVED and ADOPTED;
4. The petitioner's petition for a writ of habeas corpus (Doc. No. 1) is DENIED; 5. The petitioner has not made a substantial showing of the denial of a constitutional right and is therefore not entitled to a certificate of appealability, 28 U.S.C. § 2253(c)(3);[3] and
6. The clerk of court shall mark the case as CLOSED.

---------

Notes:

[1] The federal “prisoner mailbox rule” provides that a pro se prisoner's petition is deemed filed “at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 275-76 (1988). Although the clerk of court did not docket the petitioner's objections under April 16, 2018, the petitioner included a proof of service indicating that he served the objections on April 7, 2018. The court has used this latter date in finding that the petitioner timely filed the objections to the report and recommendations.

[2] The court conducts a de novo review and determination of the portions of the report and recommendation (“R&R”) by the magistrate judge to which there are objections. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”); see also E.D. Pa. Loc. R. Civ. P. 72.1(IV)(b) (providing requirements for filing objections to magistrate judge's proposed findings, recommendations or report).

In Magistrate Judge Rice's R&R, he recommends that the court dismiss the instant habeas petition because the petitioner's claims are untimely, procedurally defaulted, or non-cognizable. See R&R at 1, Doc. No. 3. More specifically, Judge Rice noted that the petitioner filed the instant petition well beyond the one-year period for him to file it after his judgment of sentence became final. See Id. at 2-3. Judge Rice noted that although the petitioner's timely filed petition under Pennsylvania's Post Conviction Relief Act (“PCRA”) tolled the time to file a section 2254 petition, on November 21, 2012, the Supreme Court of Pennsylvania denied a petition for allowance of appeal relating to the petitioner's appeal from the trial court's denial of his PCRA petition and the time for him to file the instant habeas petitioner expired by June 7, 2013. Id. at 3. The petitioner did not file the instant petition until more than four years after the time for him to file the habeas petition expired. Id. Judge Rice also pointed out that the petitioner's filing of a second PCRA petition, which the state courts determined was untimely filed, did not toll the time to file the instant petition as he is bound by the state courts' timeliness determination. Id.

Judge Rice also rejected the petitioner's argument (which he construed liberally) that the United States Supreme Court's decision in Alleyne v. United States, 570 U.S. 99 (2013) and the Supreme Court of Pennsylvania's decisions in Commonwealth v. Neiman, 84 A.3d 603 (2013) and Commonwealth v. Muniz, 164 A.3d 1189 (2017) warranted an alternative start date under 28 U.S.C. § 2244(d)(1)(C) or (D). Id. at 3-6. With respect to Alleyne, Judge Rice noted that the Supreme Court decided the case in 2013 and, even if he established an alternative start date because of Alleyne, the petitioner missed the deadline for filing the instant petition by more than four years. Id. at 4. As for Neiman and Muniz, Judge Rice explained that Neiman cannot create a cognizable federal claim because it was decided on only state law grounds. Id. at 5. In addition, the petitioner failed to explain why he waited four years after the Supreme Court of Pennsylvania decided Nieman before filing the instant petition. Id. As for Muniz, Judge Rice pointed out that even though the Supreme Court of Pennsylvania decided the case on federal and state grounds, even if the petitioner's limitation period restarted at the time of the decision in July 2017, the petitioner never raised a claim under Muniz in state court (such as by filing a third PCRA petition) and now no longer has the ability to do so. Id. Thus, Judge Rice concluded that the petitioner's claims based on Muniz are procedurally defaulted and the petitioner failed to demonstrate any legitimate cause for the default or a fundamental miscarriage of justice based on the court being unable to review the claim. Id.

Judge Rice further determined that the petitioner was not entitled to equitable tolling because he failed to explain why he waited years to file the instant petition and did not allege that any extraordinary circumstances prevented him from filing the petition. Id. at 6. Finally, Judge Rice concluded that the petitioner did not satisfy the fundamental miscarriage of justice exception to the one-year ...


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