United States District Court, E.D. Pennsylvania
DOUGLAS C. GIBBONEY, Petitioner,
SUPERINTENDENT KEVIN RANSOM, PENNSYLVANIA STATE ATTORNEY GENERAL, and THE DISTRICT ATTORNEY OF THE COUNTY OF CHESTER, Respondents.
REPORT AND RECOMMENDATION, ECF NO.
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
15, 2019, Douglas Gibboney filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, in which he
(1) seeks relief from a state court sentence resulting from
his guilty plea to driving while under the influence of
alcohol and related offenses, as well as (2) challenges the
state court's denial of his motion to withdraw that
guilty plea. See ECF No. 1. This Court referred
Gibboney's petition to United States Magistrate Judge
Lynne Sitarski on September 11, 2019, for a Report and
Recommendation (“R&R”) as to whether the
petition should be granted. See ECF No. 10.
Following receipt of the District Attorney of Chester
County's response to Gibboney's habeas petition,
see ECF No. 12, Magistrate Judge Sitarski issued her
R&R on November 19, 2019, see R&R, ECF No.
17. In it, Judge Sitarski identifies the petition as both
time-barred and raising non-cognizable claims. Id.
Gibboney has not filed objections to the R&R, and the
time for filing objections has expired. Having reviewed
Magistrate Judge Sitarski's R&R for clear error and
finding none, the Court now adopts the findings of the
R&R and dismisses Gibboney's habeas petition.
STANDARD OF REVIEW
neither party objects to a magistrate judge's report and
recommendation, the district court is not statutorily
required to review the report-either de novo or under any
other standard. Thomas v. Arn, 474 U.S. 140, 152
(1985) (“There is no indication that Congress, in
enacting § 636(b)(1)(C), intended to require a district
judge to review a magistrate's report to which no
objections are filed.”). Nevertheless, the United
States Court of Appeals for the Third Circuit has held that,
notwithstanding the absence of objections, it is
“better practice” to afford some level of review
to dispositive legal issues raised in a Magistrate
Judge's report. Henderson v. Carlson, 812 F.2d
874, 878 (3d Cir. 1987), writ denied 484 U.S. 837
(1987). Where no party objects to the findings and
recommendations of a Magistrate Judge's report, the
district court reviews the report for clear error. Univac
Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d
465, 469 (M.D. Pa. 2010) (“When no timely objection is
filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” (quoting Fed.R.Civ.P. 72(b), advisory
committee notes)); Oldrati v. Apfel, 33 F.Supp.2d
397, 399 (E.D. Pa. 1998) (explaining that in the absence of a
timely objection, the court should review the magistrate
judge's report and recommendation for clear error).
absence of objections, this Court has reviewed the record for
plain error and has found none. The R&R outlines the
factual and procedural history of this case prior to
addressing the limitations period applicable to habeas
petitions as well as the standard for merits review of habeas
petitions. See R&R at 1-7. Magistrate Judge
Sitarski then observes that Gibboney's judgment of
conviction became final on February 10, 2014, and because he
did not file the instant habeas petition until July 15, 2019,
the petition is untimely under 28 U.S.C. §
2244(d)(1)'s strict one-year limitations period. See
id. at 8-9. Nor does Judge Sitarski find Gibboney
entitled to any statutory or equitable tolling. Id.
Sitarski also concludes that neither of the two bases for the
relief sought in Gibboney's habeas petition-he challenges
(1) Pennsylvania's sentencing procedure by arguing his
sentence is “illegal as being violative of 75 Pa.C.S.
§ 3184(2), which requires a pre-sentence addiction
assessment, ” as well as (2) an alleged error in the
underlying Post-Conviction Relief Act procedure by claiming
that “[t]he lower court erred when it denied the Motion
to Withdraw Guilty Plea”-are properly cognizable habeas
claims. See R&R at 10. For these additional
reasons, even if it were not time-barred, Judge Sitarski
identifies the petition as non-viable.
review and in the absence of objections, this Court now
adopts the findings and recommendations of the well-reasoned
and thorough R&R. Gibboney's habeas corpus petition
is therefore dismissed as time-barred. Moreover, Gibboney is not
entitled to either an evidentiary hearing or a Certificate of
 “A party may serve and file
objections to the order within 14 days after being served
with a copy. A party may not assign as error a defect in the
order not timely objected to.” Fed.R.Civ.P.
 Although the R&R recommends that
the petition be “denied, ” the appropriate
disposition of an application on procedural grounds (such as
timeliness, as is the case here), rather than on substantive
grounds, is “dismissal.” See, e.g.,
Martin v. Andrew, No. 13-CV-06739, 2015 WL 2417163,
at *4 (E.D. Pa. May 18, 2015) (“Even if this court had
subject matter jurisdiction over the instant Petition, it
would nonetheless be dismissed as untimely.”). The
Court therefore ...