SESSOM v. PENNSYLVANIA STATE DEPARTMENT OF CORRECTIONS et al

Filing 15

ORDER THAT SESSOMS OBJECTIONS TO THE REPORT AND REPORT AND RECOMMENDATION ARE OVERRULED; THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED; PETITIONER'S REQUEST FOR A HEARING IS DENIED. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 10/24/13. 10/24/13 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROGER SESSOM
Petitioner,
v.
SUPT. MICHAEL WENEROWICZ, et al.,
Respondents.

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No. 13-2179

ORDER
AND NOW, this _______ day of October, 2013, upon careful and independent
consideration of Petitioner Roger Sessom's Pro Se Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254, and after a careful and independent review of the Report and
Recommendation of United States Magistrate Judge Thomas J. Rueter, and Sessom’s objections
thereto, it is hereby ORDERED:
1. Sessom's Objections to the Report and Recommendation (Doc. 14) are OVERRULED1;
1

A. Petitioner’s Claims Are Untimely
Petitioner’s objections to Magistrate Judge Rueter’s Report and Recommendation (“R&R”) do not set forth
a sufficient basis for this Court to reach a conclusion differing from Magistrate Judge Rueter on the issue of §
2244(d)(1)’s statute of limitations.
Magistrate Judge Rueter correctly determined Petitioner's habeas petition was filed after the one-year
statute of limitations had expired. Petitioner objects to this determination by arguing that §2244(d)(1)’s statute
of limitations should only begin to run on the date his Post-Conviction Relief Act (“PCRA”) claim was fully
litigated. (Pet.’s Obj. at 5.) § 2244(d)(1) is the only applicable subsection, and Petitioner’s argument goes
against its plain language. Petitioner had one year from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review,” to file his habeas petition. 28
U.S.C. § 2244(d)(1)(A). Petitioner simply ignores the fact that his conviction became final on April 16, 2010,
the date on which Petitioner failed to appeal the March 17, 2010 ruling of the Superior Court of Pennsylvania.
Because Petitioner’s conviction became final on April 16, 2010, Magistrate Judge Rueter was correct to
begin the statutory clock. The clock continued to run until the filing of Petitioner’s PRCA petition on August 6,
2010. The time between these two dates represents one hundred twelve (112) days of the 365 days in which
Petitioner had to file his habeas petition. Under § 2244(d)(2), the statutory clock was then paused while
Petitioner sought PCRA relief from August 6, 2010 to June 17, 2012. Accordingly, after the Pennsylvania
Superior Court’s dismissal of Petitioner’s PCRA appeal on May 18, 2012, PCRA review became final 30 days
after on June 17, 2012, and Petitioner had 253 days remaining to file his Petition under § 2244(d)(1). This 253day period expired on Monday, February 25, 2013. Since Petitioner did not file his habeas petition with this
Court until April 15, 2013, Magistrate Judge Rueter correctly determined that the Petition was filed beyond the

2. The Report and Recommendation (Doc. 11) is APPROVED and ADOPTED;
3. Sessom's petition for writ of habeas corpus (Doc. 1) is DENIED;
4. Petitioner’s request for a hearing is DENIED;2
one-year statute of limitations.
B. The Court Need Not Consider Petitioner’s New Arguments
In his Objections, Petitioner also argues his June 14, 2012 filing of a “Motion for Correction of Sentence”
with the Pennsylvania Court of Common Pleas for Philadelphia County should have tolled the statute of
limitations pursuant to § 2244(d)(2). (Pet.’s Obj. at 5.) Using the recent Supreme Court decision in Wall v.
Kholi, 131 S. Ct. 1278 (2011), Petitioner asserts that his June 14, 2012 motion was a form of collateral review
for the purposes of § 2244(d)(2), and tolls the statute of limitations until the motion was resolved. Given the
Court of Common Pleas had only ruled on the motion on January 7, 2013, Petitioner argues he was well within
the one-year statute of limitations when he filed his Petition on April 15, 2013.
Petitioner’s arguments in his objections to the R&R differ greatly from the arguments presented in his reply
brief to the Court. Petitioner’s reply brief, as well as the Petition itself, calculates § 2244(d)(1)’s one-year
statute of limitations as beginning from May 18, 2012, the date the Pennsylvania Superior Court dismissed
Petitioner’s PCRA appeal. (Pet.’s Reply at 3.) Petitioner never raised any of the statutory tolling arguments
found in his Objections to the R&R in any submission to Magistrate Judge Rueter.
The Court refuses to consider Petitioner’s new facts and arguments in its review of Magistrate Judge
Rueter’s R&R. Local Rule 72.1(IV)(c) states, “All issues and evidence shall be presented to the magistrate
judges, and unless the interest of justice requires it, new issues and evidence shall not be raised after the filing
of the Magistrate Judge’s Report and Recommendation if they could have been presented to the magistrate
judge.” Though the Third Circuit has yet to specifically address how District Courts are to deal with issues and
facts first raised by habeas petitioners in an objection to a magistrate’s R&R, courts within this district and
around the country have routinely refused to hear arguments similarly raised for the first time in an objection to
an R&R. See, e.g., Stromberg v. Varano, 2012 WL 2849266 at * 3 n. 14 (E.D. Pa. July 11, 2012) (Rufe, J.)
(collecting cases). The new issues Petitioner presents could have easily been raised at the Magistrate Judge
level, and Petitioner provides no reason why this was not done. For this reason, the Court finds that the “interest
of justice” does not require the Court to consider these new issues.
Petitioner has further objected to Magistrate Judge Rueter’s equitable tolling analysis. Petitioner’s
arguments on this subject are similarly untimely and unavailing. Petitioner’s Objections, again, rely upon facts
and arguments he failed to present to Magistrate Judge Rueter in any of his written submissions. For the reasons
stated previously, the Court will not entertain arguments Petitioner never presented to the court below. Because
Petitioner did not set forth extraordinary circumstances warranting equitable tolling, Petitioner’s objection is
meritless and the Court will adopt Magistrate Judge Rueter’s analysis in full.
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C. Petitioner is Denied an Evidentiary Hearing
Finally, Petitioner offers no real objection to Magistrate Judge Rueter’s decision to not hold a hearing under
28 U.S.C. § 2254(e)(2). § 2254(e)(2) leaves the decision to hold an evidentiary hearing in certain limited
circumstances to the discretion of the courts. 28 U.S.C. § 2254(e)(2); Goldblum v. Klem, 510 F.3d 204, 220-22
(3d Cir. 2007), cert. denied, 555 U.S. 850 (2008). Petitioner has never demonstrated his entitlement to a hearing
under either of § 2254(e)(2)(A)’s requirements. Petitioner’s request for an evidentiary hearing is not based upon
a new rule of constitutional law, nor is Petitioner seeking to introduce any new facts that could not have been
previously discovered. Petitioner merely disagrees with the rulings of previous courts and believes an
evidentiary hearing is an appropriate venue “to address his issues . . .” (Pet. at 18.) Petitioner’s objection on this

5. A certificate of appealability is not granted.
IT IS FURTHER ORDERED that the Clerk of Court shall mark the above-captioned
matter as CLOSED for statistical purposes.

BY THE COURT:
/s/Petrese Tucker
________________________________
Hon. Petrese B. Tucker, C.J.

issue is in conflict with the clear language of § 2254(e)(2). For this reason, Petitioner’s third objection will be
overruled and the R&R’s analysis is adopted as the Court’s own.