MILLER v. THE DISTRICT ATTORNEY OF THE COUNTY OF DELAWARE et al

Filing 12

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; OPPOSITION OF THE RECOMMENDATION FILED ON 6/30/15, FILED BY PETITIONER, EUGENE MILLER, IS OVERRULED. PETITION UNDER 28 USC, SECTION 2254 FOR WRIT OF HABEAS CORPUS IS DISMISSED AND DENIED; AND A CERTIFICATE OF APPEALABILITY WILL NOT ISSUE, ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 8/17/15. 8/18/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EUGENE MILLER,

CIVIL ACTION
Petitioner,

v.
THE DISTRICT ATTORNEY OF THE
COUNTY OF DELAWARE,
THE ATTORNEY GENERAL OF THE
STATE OF ________,
Respondents.

NO. 15-153

ORDER
AND NOW, this 17th day of August, 2015, upon consideration of Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by pro se petitioner,
Eugene Miller, the record in this case, the Report and Recommendation of United States
Magistrate Judge Elizabeth T. Hey dated June 29, 2015, and Opposition of the Recommendation
filed on June 30, 2015, IT IS ORDERED as follows:
1.

The Report and Recommendation of United States Magistrate Judge Elizabeth T.

Hey dated June 29, 2015, is APPROVED AND ADOPTED;
2.

Opposition of the Recommendation filed on June 30, 2015, filed by pro se

petitioner, Eugene Miller, is OVERRULED. In the Report and Recommendation Magistrate
Judge Hey determined that Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody filed by pro se petitioner, Eugene Miller, was not timely filed and this
Court is in complete agreement with that recommendation. With respect to pro se petitioner’s
claim under Alleyne v. United States, _______ U.S. _______, 133 S. Ct. 2151 (2013), the Third
Circuit has held that it does not apply retroactively on collateral attack. United States v. Reyes,
755 F.3d 210, 213 (3d Cir. 2014). Because Alleyne is not retroactive, it does not apply to

Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed
by pro se petitioner, Eugene Miller;
3.

Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State

Custody filed by pro se petitioner, Eugene Miller, is DISMISSED and DENIED; and,
4.

A certificate of appealability will not issue because reasonable jurists would not

debate (a) this Court’s decision that the petition does not state a valid claim of the denial of a
constitutional right, or (b) the propriety of this Court’s procedural ruling with respect to
petitioner=s claim. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
BY THE COURT:
/s/ Hon. Jan E. DuBois
DuBOIS, JAN E., J.

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