DEJESUS v. SAUERS et al

Filing 28

ORDER - UPON CAREFUL CONSIDERATION OF THE PETITION FOR WRIT OF HABEAS CORPUS, AND AFTER REVIEW OF THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE M. FAITH ANGELL AND PETITIOENR'S OBJECTIONS TO THE REPORT AND RECOMMENDATION, IT IS ORDERED that: 1. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED.1(footnote) 2..... SIGNED BY HONORABLE ANITA B. BRODY ON 10/3/2013. 10/4/2013 ENTERED AND COPIES VIA ECF.(mo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANGEL DEJESUS,
Petitioner,
v.
DEBRA SAUERS, et al.,
Respondents.

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CIVIL ACTION
No. 12-4061

ORDER
AND NOW, this ___3rd_ day of ___October ___, 2013, upon careful consideration of
the petition for writ of habeas corpus, and after review of the Report and Recommendation of the
United States Magistrate Judge M. Faith Angell and Petitioner’s objections to the Report and
Recommendation, it is ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.1
1

The Magistrate Judge concludes that DeJesus’s state court conviction became final on
January 4, 2007. DeJesus argues that his conviction became final on May 7, 2007, a difference
of four months and three days. Specifically, DeJesus contends that his conviction did not
become final until after the denial and period for appeal of his Motion for Reconsideration of
Sentence. While the state court docket does not contain any reference to such a motion (R. at
31a), both the Commonwealth’s Motion to Dismiss his Post-Conviction Relief Act petition (R. at
186a) and the Trial Court’s Opinion dismissing that petition (R. at 227a) describe a Motion for
Reconsideration of Sentence filed on December 8, 2006 and dismissed on December 11, 2006.
As evidence of the Motion, the Commonwealth alleges that its trial file contained a time-stamped
copy of the Motion, and upon inquiry, the trial court informed the Commonwealth that the
Motion for Reconsideration was denied on December 11, 2006. R. at 186a. Viewing this
evidence in the light most favorable to DeJesus, I assume that a Motion for Reconsideration of
Sentence was filed by his attorney on December 8, 2008, but that neither DeJesus nor his
attorney were served with an order issued by the trial judge denying the Motion as required by
Pa. R. Crim. P. 720(B)(3)(d). In the absence of such service, if a trial judge fails to rule on a
post-conviction motion within 120 days, the motion is denied by operation of law. Pa. R. Crim.
P. 720(B)(3)(a). The petitioner then has an additional 30 days to perfect his direct appeal. Pa. R.
Crim. P. 720(B)(4)(a). Applying this law to DeJesus’s case, his Motion for Reconsideration
would have been denied by operation of law on April 7, 2007, and he would have had until May
7, 2007 to perfect his appeal.

2. The petition for writ of habeas corpus is DISMISSED.
3. A certificate of appealability should not issue because Petitioner has failed to show
that a reasonable jurist could conclude that this court is incorrect in dismissing the
petition as time-barred.
s/Anita B. Brody
____________________________________
ANITA B. BRODY, J.

Copies VIA ECF on _________ to:

Copies MAILED on _______ to:

Even accepting DeJesus’s argument that his state court conviction became final on May
7, 2007, however, his federal habeas petition is time-barred. In this order, I adopt the conclusion
of the Magistrate Judge that the Commonwealth’s post-conviction procedures concluded on July
14, 2011. Under the Magistrate Judge’s calculations, assuming that DeJesus’s state court
conviction became final on January 4, 2007, 23 days remained in the federal habeas statute of
limitations period on July 14, 2011. DeJesus filed his federal habeas petition more than a year
later on July 16, 2012; an additional four months and three days in the limitations period would
not make his petition timely.