MANN v. GILMORE et al
ORDER THAT UPON CONSIDERATION OF PETITIONER GARY MANN'S PETITION FOR WRIT OF HABEAS CORPUS 1 , MAGISTRATE JUDGE ELIZABETH T. HEY'S REPORT AND RECOMMENDATION 15 , PETITIONER'S OBJECTIONS 19 AND THE GOVERNMENT'S RESPONSE 22 , I T IS ORDERED THAT MAGISTRATE JUDGE HEY'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. MANN'S PETITION IS DISMISSED WITH PREJUDICE. WE DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY. THE CLERK SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 9/19/16. 9/19/16 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(gs)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT GILMORE, et al.
AND NOW, this 19th day of September, 2016, upon consideration of petitioner
Gary Mann’s petition for writ of habeas corpus (docket entry # 1), the Report and
Recommendation (“R & R”) from the Honorable Elizabeth T. Hey (docket entry # 15),
petitioner’s objections thereto (docket entry # 19), and the Government’s response to petitioner’s
objections (docket entry # 22), and the Court finding that:
Mann filed a pro se petition for habeas relief on August, 8, 2015, over ten
years after filing his first petition under the Post-Conviction Collateral Relief Act, 42 Pa.C.S. §§
9541, et seq. (“PCRA”);
As detailed in Judge Hey’s R & R, Mann timely filed his first PCRA
petition on August 25, 2004, after 274 days of the one-year limitations period for any prospective
habeas petition had run; 1
The Pennsylvania Supreme Court denied his final petition for allowance of
appeal on November 4, 2009, meaning that, while his one-year period for filing a habeas petition
was tolled between 2004 and 2009, see 28 U.S.C. § 2254(d)(2), petitioner needed to file his
habeas petition by February 3, 2010 in order for it to be timely under AEDPA;
Mann’s petition, filed in August of 2015, is therefore untimely;
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA) provides this
one year limitation. See 28 U.S.C. § 2254(d).
Mann does not qualify for equitable tolling, as he has failed to show that
he has pursuing his rights diligently as required by the Supreme Court in Holland v. Florida, 560
U.S. 631, 645-46 (2010);
Moreover, Mann does not qualify for the Fundamental Miscarriage of
Justice Exemption, as he has not made the requisite showing of actual innocence, see McQuiggin
v. Perkins, 133 S. Ct. 1924 (May 28, 2013) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995));
Finally, Mann’s argument, presented for the first time in his objections,
that his claims were entitled to review under Martinez v. Ryan, 132 S. Ct. 1309 (2012), is
erroneous since that case applied to situations where attorney error caused procedural default in
initial-review collateral proceedings, and is thus inapplicable to cases, such as this one, where
Mann has filed his petitions in state and federal court pro se; 2
Since Mann’s untimely petition cannot be excused, we will adopt Judge
Hey’s R & R and dismiss his petition with prejudice.
Mann’s only counsel in his post-conviction proceedings seemed to be Court appointed
counsel in his first PCRA petition, which was dismissed without a hearing. See Commonwealth
v. Mann, C.P. No. 9909-0478 (Phila. C.C.P. Mar. 21, 2006. This counsel was appointed after
Mann had initiated his proceedings, and thus Martinez would not apply.
It is hereby ORDERED that:
Magistrate Elizabeth T. Hey’s Report and Recommendation is
APPROVED and ADOPTED;
Mann’s petition for writ of habeas corpus is DISMISSED WITH
We DECLINE to issue a certificate of appealability; 3 and
The Clerk of Court shall CLOSE this case statistically.
BY THE COURT:
/s/ Stewart Dalzell, J.
A certificate of appealability should issue only when reasonable jurists could disagree
with our ruling, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and that is not the case here.
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