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Dip v. SCI Dallas Warden

United States District Court, E.D. Pennsylvania

June 27, 2018

SINORN DIP, Petitioner,
v.
SCI DALLAS WARDEN, et al., Respondents.

          ORDER

         EDUARDO C. ROBRENO, J.

         AND 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 ADOPTED;[1]
(2) Petitioner's Objections to the Report and Recommendation are OVERRULED;[2]
(3) The Petition for a Writ of Habeas Corpus (ECF No. 1) is DENIED and DISMISSED WITH PREJUDICE without an evidentiary hearing;
(4) A certificate of appealability shall not issue;[3] and
(5) The Clerk shall mark this case CLOSED.

         AND IT IS SO ORDERED.

---------

Notes:

[1] 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 objections.

[2] 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 petition. Id.

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 ...


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