POLANCO v. VARANO et al

Filing 12

ORDER THAT THE PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED AS UNTIMELY WITHOUT AN EVIDENTIARY HEARING AND THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY. FURTHERMORE PETITIONER'S MOTION TO AMEND HABEAS CORPUS PETITION IS DENIED AS MOOT BECAUSE HIS PETITION IS DISMISSED AS TIME BARRED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 11/4/09. 11/4/09 ENTERED AND COPIES MAILED AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA __________________________________________ JOSE POLANCO, : Petitioner, : : v. : : SUPERINTENDENT VARANO, et al., : Respondents. : __________________________________________:

CIVIL ACTION

No. 08-3839

ORDER AND NOW, this 28th day of October, 2009, upon consideration of the Petition for Writ of Habeas Corpus, Respondents' Answer thereto, the Report and Recommendation of United States Magistrate Judge M. Faith Angell dated May 27, 2009, and Petitioner's objections to the Report and Recommendation, and after a thorough and independent review of the record, it is hereby ORDERED that: 1. 2. 3. Petitioner's objections are OVERRULED; The Report and Recommendation is APPROVED and ADOPTED; The Petition for Writ of Habeas Corpus is DENIED with prejudice and DISMISSED as untimely without an evidentiary hearing; and 4. There is no probable cause to issue a certificate of appealability.

FURTHERMORE, upon consideration of Petitioner's "Motion to Amend Habeas Corpus In the Above-Captioned Matter," (doc. no. 11), wherein Petitioner requested that Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), be added to his Petition as "a newly-recognized constitutional right," it is hereby ORDERED that Petitioner's motion is DENIED as moot because his Petition

is dismissed as time-barred.1

BY THE COURT: /s/ Mitchell S. Goldberg ____________________________ MITCHELL S. GOLDBERG, J.

In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the Supreme Court clarified its holding on the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004), and did not create a newly recognized constitutional right. Therefore, the one year period of limitation applicable to Petitioner's Petition was not tolled under 28 U.S.C. § 2244(d)(1)(C).

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