PATILLO v. MAZURKIEWICZ et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE HART; IT IS FURTHER ORDERED THAT MAGISTRATE JUDGE HART'S SUPPLEMENTAL REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED, AND THAT THE PRO SE' PETITION FOR HABEAS CORPUS RELIEF I S DENIED WITHOUT A HEARING. IT IS FURTHER ORDERED THAT BECAUSE PETITIONER FAILS TO DEMONSTRATE DENIAL OF A CONSTITUTIONAL RIGHT, A CERTIFICATE OF APPEALABILITY IS DENIED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL CLOSE THIS MATTER FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 3/12/15. 3/12/15 ENTERED AND COPIES E-MAILED, MAILED TO PRO SE' AND RESPONDENT.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VERNON PATILLO,

)
)
Petitioner
)
)
vs.
)
)
)
JOSEPH MAZURKIEWICZ and
)
ATTORNEY GENERAL OF THE STATE OF
)
PENNSYLVANIA,
)
)
Respondents
)
O R D E R

Civil Action
No. 2012-cv-00813

NOW, this 12th day of March, 2015, upon consideration
of the following documents:
(1)

(2)

Respondents’ Answer to Petition for Habeas
Relief, which response was filed May 15, 2012
(Document 10);

(3)

Report and Recommendation of United States
Magistrate Judge Jacob P. Hart dated May 15,
2012 and filed May 16, 2012 (Document 11);

(4)

Supplemental Report and Recommendation of
Magistrate Judge Hart dated and filed
October 6, 2014 (Document 31);

(4)

1

Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody,
which petition was dated February 13, 2012
and filed on February 15, 2012 (Document 1);1

Objection to the Magistrate’s Supplemental
Report and Recommendation, which objection
was filed by petitioner October 24, 2014
(Document 34);

Mr. Patillo’s original petition for writ of habeas corpus was
filed on February 15, 2012. However, the petition itself indicates that it
was signed by petitioner on February 13, 2012. Thus, giving petitioner the
benefit of the prison mailbox rule, (See Burns v. Morton, 134 F.3d 109
(3d Cir. 1998) and Rule 3(d) of the Rules Governing Section 2254 Cases in the
United States District Courts), I consider February 13, 2012 the filing date
of Mr. Patillo’s original petition.

it appearing after de novo review of this matter that petitioner
was given a reasonable amount of time to seek to reply to
Respondents’ Answer to Petition for Habeas Relief, that a stay of
this matter is not appropriate and that United States Magistrate
Judge Jacob P. Hart did not inappropriately characterize
petitioner’s efforts at obtaining relief in this matter,
IT IS ORDERED that petitioner’s objections to
Magistrate Judge Hart’s Supplemental Report and Recommendation
are overruled.2

2

When objections are filed to a magistrate judge’s report and
recommendation, I am required to make a de novo determination of those
portions of the report, findings or recommendations made by the magistrate
judge to which there are objections. 28 U.S.C. § 636(b)(1); Rule 72.1(IV)(b)
of the Rules of Civil Procedure for the United States District Court for the
Eastern District of Pennsylvania. Furthermore, district judges have wide
latitude regarding how they treat recommendations of the magistrate judge.
See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424
(1980).
Indeed, by providing for a de novo determination, rather than a de
novo hearing, Congress intended to permit a district judge, in the exercise of
the court’s sound discretion, the option of placing whatever reliance the
court chooses to place on the magistrate judge’s proposed findings and
conclusions. I may accept, reject or modify, in whole or in part any of the
findings or recommendations made by the magistrate judge. Raddatz, supra.
Here, petitioner asserts by way of objections to Magistrate Judge
Hart’s Supplemental Report and Recommendation, that he was again not provided
an opportunity to explain why equitable tolling may be appropriate in this
case. In addition, defendant contends that he should be granted a stay of
proceedings pursuant to the decision of the United States Supreme Court in
Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), because
petitioner is pursuing a new petition in state court for post-conviction
relief based upon new evidence, which stay was recommended to be denied by
Magistrate Judge Hart. Finally, petitioner takes issue with Magistrate Judge
Hart’s characterization of his attempts to obtain relief as persistent efforts
to delay the final evaluation of his current petition for habeas corpus
relief. For the following reasons, I overrule petitioner’s objections.
(Footnote 2 continued):

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(Continuation of footnote 2):
Respondents’ Answer to Petition for Habeas Relief was filed on
May 15, 2012. That same date, Magistrate Judge Hart’s Report and
Recommendation was signed and it was filed the next day. A reply by
petitioner is not granted as of right, but rather may be submitted “within a
time fixed by the Judge.” Rule 5(e) of the Rules Governing Section 2254 Cases
in the United States District Courts. In his previous objection to Magistrate
Judge Hart’s original Report and Recommendation, petitioner asserted that he
was unaware that his direct appeal was completed because his appellate counsel
abandoned him and he was transferred between numerous correctional
institutions, including outside the Commonwealth of Pennsylvania.
While I originally made no findings regarding the strength of
petitioner’s claims, I did conclude that it was appropriate to permit
petitioner to file a reply to address the issue of equitable tolling. Thus, I
remanded this matter back to Magistrate Judge Hart to consider any rely
submitted by petitioner in evaluating whether equitable tolling might be
appropriate in this matter.
By my Order dated May 20, 2014 and filed May 22, 2014, I granted
petitioner the opportunity to file a reply and remanded the matter to
Magistrate Judge Hart to consider petitioner’s reply and file a supplemental
Report and Recommendation. Specifically, I gave petitioner until July 22,
2014 to file a reply (approximately two months after my Order. By Order dated
and filed June 30, 2014, Magistrate Judge Hart gave petitioner an enlargement
of time until September 30, 2014 to file his reply. That Order further
provided that there would be no further enlargements of time granted.
Petitioner contends that he received the state court record in
this case and realized that it contained a witness statement that he allegedly
had never been provided. He further contends that he sought a stay of this
matter, which was denied by Magistrate Judge Hart so that he could go back to
state court and exhaust that new claim. Petitioner contends that Magistrate
Judge Hart’s denial of the stay was in error. I disagree.
Initially, I conclude that petitioner was given more than adequate
time to reply to respondents’ answer to his habeas corpus petition. In the
original Report and Recommendation Magistrate Judge Hart determined that the
statute of limitations under 28 U.S.C. § 2244(d)(1) expired on July 25, 2009
and petitioner did not file the within petition until nearly two years and
seven months later on February 13, 2012. Petitioner was provided over four
months to file a reply and attempt to explain why equitable tolling should be
permitted and he did not do so. In the absence of any information or argument
to the contrary, I conclude that Magistrate Judge Hart correctly determined
that the within petition is untimely. Moreover, I conclude that there is
nothing about petitioner finding newly discovered evidence that prevented him
from addressing the timeliness issue within the four months provided him by my
May 22, 2014 Order and Magistrate Judge Hart’s June 30, 2014 Order.
Next, I conclude that Magistrate Judge Hart was correct when he
denied petitioner’s motion for stay because if petitioner did not establish
that equitable tolling should be applied, his original petition is untimely
(Footnote 2 continued):

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IT IS FURTHER ORDERED that Magistrate Judge Hart’s
Report and Recommendation is approved and adopted.
IT IS FURTHER ORDERED that Magistrate Judge Hart’s
Supplemental Report and Recommendation is approved and adopted.
IT IS FURTHER ORDERED that the pro se petition for
habeas corpus relief is denied without a hearing.
IT IS FURTHER ORDERED that because petitioner fails to
demonstrate denial of a constitutional right, a certificate of
appealability is denied.3

(Continuation of footnote 2):
and should not be stayed pending resolution of an issue in state court which
is not part of the pending habeas petition. I further conclude that the
current habeas petition is not a mixed petition, because the newly-discoveredevidence issue is not before this court, so the Rhines stay and abey procedure
is inapplicable.
Finally, I overrule petitioner’s objection to Magistrate Judge
Hart’s statement “he [petitioner] has made persistent efforts to delay the
final evaluation of his petition for habeas corpus relief.” See Supplemental
Report and Recommendation at page 1. Specifically, I conclude that this
statement could be construed as reasonable after petitioner was given four
months to file his reply and he failed to do so, and instead, sought to stay
this action while he went back to state court to pursue his newly discovered
evidence claim which has nothing to do with the issue of the timeliness of the
within petition.
Accordingly, I conclude that all of petitioner’s objections to
Magistrate Judge Hart’s Supplemental Report and Recommendation are without
merit. Thus, I overrule each objection and approve and adopt both the
original Report and Recommendation and the Supplemental Report and
Recommendation. Specifically, I conclude that the within petition for habeas
corpus relief is untimely and that there is no basis to apply equitable
tolling.
3

The Third Circuit Local Appellate Rules require that "[a]t the
time a final order denying a petition under 28 U.S.C. § 2244 or § 2255 is
issued, the district judge will make a determination as to whether a
certificate of appealability should issue." 3d Cir. L.A.R. 22.2 (2011). A
certificate of appealability shall issue "only if the applicant has made a
(Footnote 3 continued):

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IT IS FURTHER ORDERED that the Clerk of Court shall
close this matter for statistical purposes.

BY THE COURT:

/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge

(Continuation of footnote 3):
substantial showing of the denial of a constitutional right."
§ 2253(c)(2).

28 U.S.C.

Here, I conclude that jurists of reason would not debate the
conclusion that the within petition fails to state a valid claim of the denial
of a constitutional right. See Slack v. McDaniel, 529 U.S. 473, 484,
120 S.Ct. 1595, 1603, 146 L.Ed.2d 542, 555 (2000). Accordingly a certificate
of appealability is denied.

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