POULSON v. WENEROWICZ et al
ORDER THAT THE CLERK OF COURT SHALL TRANSFER THIS CASE FROM OUR CIVIL SUSPENSE DOCKET TO OUR ACTIVE DOCKET; JUDGE HART'S REPORT AND RECOMMENDATION IS ADOPTED AND APPROVED; POULSON'S PETITION PETITION FOR A WRIT OF HABEAS CORPUS IS DENIED WI TH PREJUDICE; THERE BEING NO WARRANT FOR A CERTIFICATE OF APPEALABILITY, WE DECLINE TO ISSUE ONE; AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY.. SIGNED BY HONORABLE STEWART DALZELL ON 5/5/15. 5/6/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND COUNSEL. Modified on 5/6/2015 (pr, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL WENEROWICZ et al.
AND NOW, this 5th day of May, 2015, upon consideration of petitioner’s petition for a
writ of habeas corpus (docket entry # 1), our June 28, 2013 Order referring the matter to the
Honorable Jacob P. Hart for a Report and Recommendation (“R&R”) pursuant to the procedure
for the random assignment of habeas corpus cases, Local R. Civ. P. 72.1 and 28 U.S.C. §
636(b)(1)(B), and Judge Hart’s R&R (docket entry # 7), to which neither party filed objections,
and the Court finding that:
In his R&R, Judge Hart reviewed the petitioner’s litigation following his 1992
conviction in the murder of his mother and 1993 sentence of life imprisonment, R&R at 1;
In August of 2010, Poulson filed a parole application with the Pennsylvania
Board of Probation and Parole which responded that it would not schedule a parole review
because Poulson’s life sentence had no minimum or maximum dates, id. at 1, 2;
Poulson filed a request for mandamus in the Pennsylvania Commonwealth Court,
challenging the Parole Board’s position by arguing that (1) he was entitled to consideration under
a proposed Senate Bill that sought to permit life prisoners to obtain a parole hearing after fifteen
years, and (2) the law precluding parole for those serving life sentences did not apply when he
was sentenced, id. at 2;
At the same time, he filed for a modification of his sentence, id.;
The trial court treated these filings as a first petition for collateral relief under
Pennsylvania’s Post-Conviction Relief Act (“PCRA”) and denied his petition after a hearing, id.
at 3, and the Pennsylvania Superior Court dismissed his appeal for failure to comply with a filing
On December 15, 2011, Poulson filed the present petition which Judge Hart
construed to be a reassertion of the claim he pressed concerning his parole application, id.;
Judge Hart determined that the petition was untimely under the Anti-Terrorism
and Effective Death Penalty Act's (“AEDPA”) one-year limitation period on applications for a
writ of habeas corpus which begins to run when a petitioner’s judgment becomes final by the
conclusion of direct review, id.;
That date could “[m]ost charitably” be said to be when the Parole Board denied
Poulson’s claim on September 13, 2010 in which case his petition missed the September 13,
2011 deadline by three months, id., but to the extent Poulson sought to challenge the legality of
his original sentence, Judge Hart held that period expired long ago, id. at 4;1
In addition to determining that Poulson’s petition was untimely, Judge Hart also
found it lacked merit, id.;
The constitutional right to substantive due process that protects Poulson from
arbitrary and capricious decisions, see Furnari v. Warden, 218 F.3d 250, 254 (3d Cir. 2000),
requires only that there be a rational basis in the record for the parole decision, R&R at 6;
Poulson’s judgment became final before the AEDPA became effective, on April 24, 1996. But
that only extended to April 24, 1997 the period in which he was entitled to file his petition. R&R
at 5. Judge Hart also observed that Poulson’s subsequent litigation does not extend the AEDPA
deadline, id. at 4. Although equitable estoppel is available under certain circumstance, Poulson
made no such argument here, id. at 5.
Under Pennsylvania law, parole is not available to a prisoner serving a life
sentence and Judge Hart concluded this was unquestionably a rational basis for the denial, id.;
Finally, Judge Hart also recommends that no certificate of appealability issue;
Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for
the Third Circuit provides that “at the time a final order denying a habeas petition . . . is issued,
the district court judge will make a determination as to whether a certificate of appealability
Such a certificate should issue only if the petitioner demonstrates that “reasonable
jurists could debate” whether the petition states a valid claim for the denial of a constitutional
right, Slack v. McDaniel, 529 U.S. 473, 484 (2000); and
We do not believe that reasonable jurists could debate the conclusion that
petitioner’s petition is untimely and so we decline to issue a certificate of appealability;
It is hereby ORDERED that:
The Clerk of Court shall TRANSFER this case from our Civil Suspense docket to
our Active Docket;
Judge Hart’s Report and Recommendation is ADOPTED and APPROVED;
Poulson’s petition for a writ of habeas corpus is DENIED WITH PREJUDICE;
There being no warrant for a certificate of appealability, we DECLINE to issue
The Clerk of Court shall CLOSE this case statistically.
BY THE COURT:
_/s/ Stewart Dalzell, J.
Stewart Dalzell, J.
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