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Almodovar v. Thomas

United States District Court, E.D. Pennsylvania

July 10, 2019

EDDIE ALMODOVAR
v.
JOHN THOMAS, et al.

          ORDER

          JUAN R. SÁNCHEZ, C.J.

         AND 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 ORDERED:

         1. Almodovar's objections (Document 13) are OVERRULED;[1]

         2. The Report and Recommendation (Document 11) is APPROVED and ADOPTED;

         3. Almodovar's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Document 1) is DENIED;

         4. Judgment is entered in favor of Respondents by separate order, filed contemporaneously; and

         5. A 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).

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Notes:

[1] 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 ...


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