NATHANIEL v. RYAN

Filing 13

ORDER THAT: JUDGE HART'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; NATHANIEL'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. SEC. 2254 IS DENIED; THE CLERK OF COURT SHALL STATISTICALLY CLOSE THIS CASE. SIGNED BY HONORABLE STEWART DALZELL ON 4/20/12. 4/23/12 ENTERED AND COPIES E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PEATH O’GRADY NATHANIEL
v.
WILLIAM H. RYAN, JR.

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CIVIL ACTION

NO. 11-2346

ORDER
AND NOW, this 20th day of April, 2012, upon
consideration of Peath O’Grady Nathaniel’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry # 1 in
the present action, as well as docket entry # 1 in Civ. No. 113798), respondent William H. Ryan, Jr.’s response thereto (docket
entry # 8), and after careful and independent review of the Report
and Recommendation of United States Magistrate Judge Jacob P. Hart
(docket entry # 12), to which no party filed objections within the
fourteen-day period that Local R. Civ. P. 72.1 IV(b) prescribes,
and the Court agreeing with Judge Hart's conclusion that we lack
subject-matter jurisdiction to entertain Nathaniel’s petition
because (1) “he had completed his sentence and was not even in the
country when he filed, [so that] he does not satisfy the ‘in
custody’ requirement,” and (2) the petition is time-barred,
inasmuch as (i) Nathaniel “did not file this petition until April
1, 2011, more than a year after the federal limitations period had
ended,” (ii) the federal limitation period provided for in 28

U.S.C. § 2244(d)(1)(C) is not made applicable here by Padilla v.
Kentucky, 130 S. Ct. 1473 (2010), since as our Court of Appeals
has “found that the rule in Padilla is not new, but rather it is a
novel application of an existing rule,” and (iii) in any event,
Nathaniel filed his petition more than a year -- albeit by only
one day -- after Padilla was decided, it is hereby ORDERED that:
1.

Judge Hart’s Report and Recommendation (docket

entry # 12) is APPROVED and ADOPTED;
2.

Nathaniel’s petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (docket entry # 1) is DENIED;
3.

Nathaniel having failed to make a substantial

showing of the denial of a constitutional right, we decline to
issue a certificate of appealability; and
4.

The Clerk of Court shall statistically CLOSE this

case.

BY THE COURT:

/s/ Stewart Dalzell, J.

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