CLARK v. COMMONWEALTH OF CHESTER COUNTY et al

Filing 9

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE LYNNE A. SITARSKI IS APPROVED AND ADOPTED; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY.. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 7/20/10. 7/21/10 ENTERED AND COPIES MAILED TO PRO SE PLFF., E-MAILED TO COUNSEL.(pr, )

C L A R K v. COMMONWEALTH OF CHESTER COUNTY et al

Doc. 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DARREN CLARK v. COMMONWEALTH OF CHESTER COUNTY, et al : : : : : : CIVIL ACTION NO. 10-0850

ORDER AND NOW, this 20th day of July, 2010, upon consideration of the Petition for Writ of Habeas Corpus (Document No. 1), the Respondents' Answer to Petition for Writ of Habeas Corpus (Document No. 6), the Report and Recommendation filed by United States Magistrate Judge Lynne A. Sitarski, the petitioner's objections to the Report and Recommendation, and after a thorough and independent review of the record, it is ORDERED that: 1. 2. The petitioner's objections are OVERRULED;1 The Report and Recommendation of Magistrate Judge Lynne A. Sitarski is

APPROVED and ADOPTED; 3. 4. The Petition for Writ of Habeas Corpus is DENIED; and, There is no probable cause to issue a certificate of appealability.
/Timothy J. Savage TIMOTHY J. SAVAGE, J.

In his objections to the Report and Recom m e n d a t io n , petitioner contends that the m a g is t r a t e j u d g e erred in not applying equitable tolling. He claim s that the 77 days his PCRA petition was not c o n s id e r e d by the state court "due to an adm in is tr a to r error" should have been excluded from the lim it a t io n s period. So, he argues, because the m a g is t r a t e judge calculated that he had m is s e d the statute o f lim ita t io n s by only 62 days, his petition should be considered tim e ly. However, his reading of the Report a n d Recom m e n d a tio n is m is ta k e n . The m a g is tr a te judge found, and the record supports her finding, that th e petition was filed 14 m o n th s after the statute of lim ita tio n s had expired. Thus, a period of 77 days does n o t alter the untim e lin e s s of his petition.

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