United States District Court, E.D. Pennsylvania
C. ROBRENO, J.
NOW, this 26th day of June, 2018, after review of the Report
and Recommendation of United States Magistrate Judge Timothy
R. Rice (ECF No. 25) and Petitioner's objections thereto
(ECF No. 27), it is hereby ORDERED as follows:
(1) The Report and Recommendation is APPROVED and
(2) Petitioner's Objections to the Report and
Recommendation are OVERRULED;
(3) The Petition for a Writ of Habeas Corpus (ECF No. 1) is
DENIED and DISMISSED WITH PREJUDICE without an evidentiary
(4) A certificate of appealability shall not
(5) The Clerk shall mark this case CLOSED.
IS SO ORDERED.
 A district conducts a de novo review
and determination of the portions of the report and
recommendation by a 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).
Magistrate Judge Rice filed a report and
recommendation that the petition be denied, with prejudice,
as untimely under the Anti-Terrorism and Effective Death
Penalty Act's (“AEDPA”) one-year statute of
limitations. See ECF No. 25. In response, Petitioner filed
objections, ECF No. 27, and this Court conducted a de novo
review of the portion of the report pertaining to the
 Petitioner makes two discrete
objections to the report and recommendation. First, he
objects to the conclusion that his untimely habeas petition
is not saved by equitable tolling. Pet. Obj. at 2.
Petitioner's second objection is to R&R's the
conclusion that he has fallen short of satisfying the actual
innocence exception to judicial review of an untimely habeas
A petitioner may be entitled to equitable tolling by
showing that he or she has been pursuing his or her rights
diligently, and that some extraordinary circumstance stood in
the way and thereby prevented timely filing. Holland v.
Florida,560 U.S. 631, 634, 649 (2010). The Third
Circuit has recognized that equitable tolling “may be
appropriate if (1) the defendant has actively misled the
plaintiff, (2) if the plaintiff has ‘in some
extraordinary way' been prevented from asserting his
rights, or (3) if the plaintiff has timely ...