United States District Court, W.D. Pennsylvania
RICHARD A. RYAN, Petitioner,
MALINDA ADAMS, SUPERINTENDENT, DISTRICT ATTORNEY OF ALLEGHENY COUNTY, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
RICHARD A. RYAN, MN-1998 SCI MERCER Rusheen R. Pettit Office
of Attorney General (via ECF electronic notification)
MARILYN J. HORAN UNITED STATES DISTRICT JUDGE.
A. Ryan, proceeding pro se9 has filed a
Petition for Writ of Habeas Corpus by a Person in State
Custody (the "Petition") pursuant to 28 U.S.C.
§ 2254, challenging the judgment of sentence imposed on
him by the Court of Common Pleas of Allegheny County,
Pennsylvania, on April 27, 2016. The case was referred to
Chief United States Magistrate Judge Cynthia Reed Eddy for a
report and recommendation in accordance with 28 U.S.C. §
636(b)(1) and Rule 72 of the Local Rules for Magistrate
filed a Motion to Dismiss seeking to have the Petition
dismissed on the grounds that the Petition was filed well
outside the AEDPA's applicable statute of limitations.
(ECFNo. 8). Ryan filed a Response in opposition. (ECFNo. 12).
August 13, 2019, Chief Magistrate Judge Eddy filed a Report
and Recommendation ("R&R") recommending that
the Petition be dismissed with prejudice as untimely and that
a certificate of appealability be denied. (ECF No. 13). The
parties were served with the R&R and advised that any
objections by Petitioner must be filed by September 3, 2019,
and any objections by Respondents must be filed by August 28,
2019. On September 5, 2019, when the Court had not received
any objections or a request for an extension of time by any
party, the Court entered a Memorandum Order adopting the
R&R, granting the motion to dismiss, and dismissing as
untimely the petition. (ECFNo. 14). The case was then closed.
September 11, 2019, the Court received from Mr. Ryan a
"Motion for First Extension of Time to File
Petitioner's Reply/Answer/Objections to the
Magistrate's Report and Recommendation." (ECFNo.
15). Although the envelope was postmarked September 9, 2019,
the actual document was dated August 25, 2019. The Court,
therefore, extended the benefit of the prisoner mailbox rule
to Mr. Ryan and granted an extension until October 25, 2019,
to file objections to the Report and Recommendation. The
Order adopting the R&R filed September 5, 2019 (ECF No.
14) was vacated and the Clerk of Court was directed to reopen
the case. (ECF No. 16).
the time for filing objections has passed, and Mr. Ryan has
not filed any objections nor sought any farther extensions of
time in which to do so. If a party does not file timely
objections to a magistrate judge's report and
recommendation, the party may lose its rights to de
novo review by the district court, although the court
must still give "reasoned consideration" to the
magistrate judge's report and recommendation before
explained in the Order of September 5, 2019, Ryan's
sentence became final on May 27, 2016. He filed a timely PCRA
petition, which tolled the AEDPA statute of limitations, but
248 days had passed before the statute of limitations was
tolled. The tolling period ended on March 18, 2019, when the
Pennsylvania Supreme Court denied Ryan's petition for
allowance of appeal. Ryan only had 17 days left to file his
federal habeas petition, or by April 5, 2017. The Court
agrees with the recommendation that nothing in the record
supports a conclusion that equitable tolling is appropriate.
Court has reviewed the matter and concludes that the R&R
correctly analyzes the issue and makes a sound
recommendation. Accordingly, after de novo review of
the pleadings and documents in the case, together with the
R&R, the following order is entered:
NOW, this 5th day of December, 2019:
IS HEREBY ORDERED that Respondents' motion to
dismiss is GRANTED and the instant Petition
for Writ of Habeas Corpus is DISMISSED as
untimely. Inasmuch as reasonable jurists would not find it
debatable whether the instant petition is untimely,
IT IS FURTHER ORDERED that no certificate of
appealability shall issue.
Report and Recommendation filed on August 13, 2019 (ECF No.
13) is ADOPTED as the Opinion of the Court.
IS FURTHER ORDERED that the Clerk of Court mark this
IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1)
of the Federal Rules of Appellate Procedure, Petitioner has
thirty (30) days to file a notice of appeal as provided ...