United States District Court, E.D. Pennsylvania
R. SÁNCHEZ, C.J.
NOW, this 10th day of July, 2019, upon careful consideration
of pro se Petitioner Eddie Almodovar's Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus, and after
independent review of the November 16, 2018, Report and
Recommendation of United States Magistrate Judge Carol Sandra
Moore Wells and Almodovar's objections thereto, it is
Almodovar's objections (Document 13) are
Report and Recommendation (Document 11) is APPROVED and
Almodovar's Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus (Document 1) is DENIED;
Judgment is entered in favor of Respondents by separate
order, filed contemporaneously; and
certificate of appealability shall not issue, as Almodovar
has not made a substantial showing of the denial of a
constitutional right nor demonstrated that reasonable jurists
would debate the correctness of the procedural aspects of
this ruling, see 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
 In February 2009, pro se Petitioner
Eddie Almodovar was convicted of robbery, criminal
conspiracy, and carrying a firearm without a license. On June
1, 2009, Almodovar was sentenced to fifteen to thirty years
of imprisonment. Almodovar filed a timely direct appeal and
on August, 12, 2010, the Pennsylvania Superior Court affirmed
his judgment of conviction. Almodovar did not seek review
from the Pennsylvania Supreme Court. On September 20, 2011,
Almodovar filed a pro se petition for relief under
Pennsylvania's Post Conviction Relief Act (PCRA). While
his PCRA petition was pending, on September 10, 2012,
Almodovar filed the instant Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus. The Court referred
Almodovar's habeas petition to United States Magistrate
Judge Carol Sandra Moore Wells for a report and
recommendation. On January 22, 2013, Judge Wells placed the
case in suspense while Almodovar sought PCRA relief.
On July 7, 2016, Almodovar's PCRA petition was
dismissed as untimely. Almodovar did not appeal this
decision, but chose to file a second PCRA petition.
Almodovar's second PCRA petition was dismissed as
untimely on January 27, 2017. Almodovar appealed and the
Superior Court affirmed the dismissal of the second PCRA
petition on November 1, 2017. On June 29, 2018, Almodovar
attempted to appeal his June 1, 2009, sentence to the
Superior Court. The Superior Court quashed Almodovar's
appeal as untimely on October 15, 2018.
On November 16, 2018, Judge Wells issued a Report and
Recommendation (the R&R) recommending Almodovar's
habeas petition be dismissed without an evidentiary hearing
as untimely. On December 26, 2018, Almodovar filed objections
to the R&R pursuant to 28 U.S.C. § 636(b)(1).
Although these objections were filed outside of the 14-day
period for Almodovar to timely object to the R&R,
see Local R. Civ. P. 72.1(IV)(a), the Court will
nevertheless consider them, see Perez-Barron v. United
States, No. 09-0173, 2010 WL 3338762, at *1 (W.D. Pa.
Aug. 23, 2010) (considering objections to a report and
recommendation even though they were untimely filed).
Pursuant to 28 U.S.C. § 636(b)(1), this Court
reviews de novo “those portions of the report or
specified proposed findings or recommendations to which
objection is made.” Almodovar objects to Judge
Wells's finding that his habeas petition was untimely
asserting the statute of limitations was statutorily and
equitably tolled. Upon de novo review of the record,
Almodovar's objections are meritless.
Initially, as Judge Wells noted, Almodovar's
habeas petition is untimely. The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) provides a petitioner one
year after his conviction becomes final to file a federal
habeas petition under § 2254. In this instance,
Almodovar's conviction became final on September 11,
2010-thirty days after the Superior Court denied his direct
appeal. See Pa. R. App. P. 1113(a). As a result,
Almodovar needed to file his habeas petition on or before
September 11, 2011. Because he did not file his habeas
petition until September 10, 2012, his habeas petition may
only be considered timely ...