MARTIN v. ROZUM et al
ORDER THAT MAGISTRATE JUDGE RAPOPORT'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. IT IS FURTHER ORDERED THAT THE PETITION FOR HABEAS CORPUS RELIEF IS DISMISSED WITHOUT AN EVIDENTIARY HEARING AND WITHOUT PREJUDICE TO RE-FILE WITHIN THE A PPLICABLE STATUE OF LIMITATIONS AFTER EXHAUSTING ALL OF HIS CLAIMS IN THE PROCEEDINGS PURSUANT TO PENNSYLVANIA'S POST CONVICTION RELIEF ACT HAVE CONCLUDED, AND A CERTIFICATE OF APPEALABILITY IS DENIED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 9/9/13. 9/10/13 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA and
THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA,
O R D E R
NOW, this 9th day of September, 2013, upon
consideration of the Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody, which petition is
dated February 28, 2012 and was filed on March 5, 20121; upon
consideration of the Response to Petition for Writ of Habeas
Corpus, which response was filed July 12, 2012; upon
consideration of the Reply to Commonwealth Response Brief, which
reply was filed July 30, 2012; upon consideration of the Report
and Recommendation of United States Magistrate Judge Arnold C.
Rapoport filed April 30, 2013; it appearing that as of the date
of this Order no objections have been filed to the Report and
Petitioner’s habeas corpus motion was filed by the Clerk of Court
on March 5, 2012. However, the motion itself indicates that it was signed by
petitioner on February 28, 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 28, 2012 the filing date of Mr. Martin’s
habeas corpus motion.
Recommendation of Magistrate Judge Rapoport2; it further
appearing after review of this matter that Magistrate Judge
Rapoport’s Report and Recommendation correctly determined the
legal and factual issues presented in the petition for habeas
IT IS ORDERED that Magistrate Judge Rapoport’s Report
and Recommendation is approved and adopted.
IT IS FURTHER ORDERED that the petition for habeas
corpus relief is dismissed without an evidentiary hearing and
without prejudice to re-file within the applicable statute of
limitations after exhausting all of his claims in the proceedings
pursuant to Pennsylvania’s Post Conviction Relief Act have
By Order dated
petitioner’s motion for an
until June 3, 2013 to file
However, as of the date of
May 9, 2013 and filed May 10, 2013, I granted
extension of time to file objections and gave him
objections to the Report and Recommendation.
this Order, petitioner has not filed any
Petitioner currently has a Pennsylvania Post Conviction Relief Act
(“PCRA”) petition pending in the Court of Common Pleas of Philadelphia County,
Pennsylvania (See CP-51-CR-1302354-2006). In petitioner’s Reply to
Commonwealth Response Brief, he requests that a “stay and abeyance” procedure
is appropriate until his PCRA proceedings have concluded. See Rhines v.
Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).
However, stay and abeyance is available only in limited
circumstances, such as where dismissal of a habeas corpus petition “could
jeopardize the timeliness of a collateral attack.” Crews v. Horn, 360 F.3d.
146, 152 (3d Cir. 2004).
However, pursuant to 28 U.S.C. § 2244(d)(2) the
one-year limitations period for filing a habeas corpus petition is tolled
while a “properly filed application for State post-conviction or other
collateral review” is pending.
Here, respondents acknowledge that petitioner’s pending PCRA
petition was timely filed, and that he may obtain federal review of his claims
after exhausting available state-court remedies (assuming he subsequently
files his petition within the applicable limitations period). (See Response
to Petition for Writ of Habeas Corpus, page 9).
(Footnote 3 continued):
IT IS FURTHER ORDERED that because petitioner has not
met statutory requirements to have his case heard, and no
reasonable jurist could find this ruling debatable, and 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
mark this case closed for statistical purposes.
BY THE COURT:
/s/ James Knoll Gardner
James Knoll Gardner
United States District Judge
(Continuation of footnote 3):
Therefore, and because defendant has not filed objections to the
Report and Recommendation, petitioner’s habeas corpus motion is dismissed
without prejudice to re-file within the applicable statute of limitations
after exhaustion of state court proceedings.
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