DEDMON v. WARDEN et al

Filing 12

ORDERED AS FOLLOWS: 1. THE CLERK OF COURT IS DIRECTED TO REMOVE THIS ACTION FROM CIVIL SUSPENSE; 2. THE REPORT AND RECOMMENDATION (DOC. NO. 9) IS APPROVED AND ADOPTED; 3. THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED AS TIME-BARRED UNDER 28 U.S.C. § 2241(D)(1); 4. THE PETITIONER HAS NOT MADE A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT AND IS THEREFORE NOT ENTITLED TO A CERTIFICATE OF APPEALABILITY, 28 U.S.C. § 2253(C)(2); AND 5. THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED.. SIGNED BY HONORABLE EDWARD G. SMITH ON 10/11/2016. 10/11/2016 ENTERED AND COPIES MAILED TO PETITIONER AND E-MAILED.(lbs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT FRANKIE DEDMON,
Petitioner,
v.
WARDEN, et al.,
Respondents.

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CIVIL ACTION NO. 16-1776

ORDER
AND NOW, this 11th day of October, 2016, after carefully considering the petition for
habeas corpus under 28 U.S.C. § 2254 filed by the petitioner pro se, Robert Frankie Dedmon
(Doc. No. 1-1), the state court record, the response to the petition filed by the respondents (Doc.
No. 5), the addendum challenging the respondent’s brief and newly discovered evidence by the
petitioner (Doc. No. 8), and United States Magistrate Judge Linda K. Caracappa’s report and
recommendation filed on August 31, 2016 (Doc. No. 9); and no party having filed written
objections to the report and recommendation; accordingly, it is hereby ORDERED as follows:
1.

The clerk of court is DIRECTED to remove this action from civil suspense;

2.

The report and recommendation (Doc. No. 9) is APPROVED and ADOPTED; 1

1
As indicated above, the petitioner has not filed written objections to the report and recommendation despite more
than 40 days having passed since Judge Caracappa filed the report and recommendation. Since neither party has
filed objections to Judge Caracappa’s report and recommendation, the court need not review the report before
adopting it. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). Nonetheless, “the better practice is for the
district judge to afford some level of review to dispositive legal issues raised by the report.” Id. As such, the court
will review the report for plain error. See Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (“In the absence
of a timely objection, . . . this Court will review [the magistrate judge’s] Report and Recommendation for clear
error.” (internal quotation marks omitted)). The court may “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The court has reviewed
Judge Caracappa’s report for plain error and has found none.
The court notes that in the respondents brief, the respondents address whether the petitioner has attempted
to assert an actual innocence exception to the time bar. See Response to Pet. For Writ of Habeas Corpus (“Resp.”)
at 8-11. The respondents point out that the petitioner did not include such an argument in his petition; instead, the
petitioner references his actual innocence in a 2012 Writ of Habeas Corpus that he filed in the Court of Common
Pleas of Philadelphia County and attaches to his 2014 petition. See id. at 8; see also Doc. No. 1-1 at ECF p. 16. The

3.

The petition for writ of habeas corpus is DENIED and DISMISSED as time-

barred under 28 U.S.C. § 2241(d)(1);
4.

The petitioner has not made a substantial showing of the denial of a constitutional

right and is therefore not entitled to a certificate of appealability, 28 U.S.C. § 2253(c)(2); and
5.

The clerk of court shall mark this case as CLOSED.

BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

respondents argue that the court should not even consider this attachment as part of the petitioner’s 2014 habeas
filing, but even if the court would consider it, the petition has not satisfied his “extremely high burden” to warrant
application of this exception because (1) he fails to present any new or reliable evidence to show that “no reasonable
juror — not even one — would have found him guilty,” and (2) he was aware of the factual basis for his arguments
more than 30 years ago. See Resp. at 8-11. In the petitioner’s addendum challenging the respondent’s brief, he did
not address the respondent’s argument that he failed to raise an actual innocence claim in his petition, and in fact,
made no reference to actual innocence whatsoever. See Addendum Challenging the Def.’s Brief and Newly
Discovered Evid. by the Pet. at 1-2.
Magistrate Judge Caracappa did not address any claim of actual innocence in the analysis of whether any
exceptions to the time bar applied. The petitioner has not objected to Judge Caracappa declining to address such a
claim. Presumably, Judge Caracappa did not address it because the petition did not property raise it. The court
agrees that it does not appear that the petitioner has asserted such a claim here.
Nevertheless, even if the petitioner had asserted actual innocence in his federal habeas corpus petition, he
has failed to sustain such a claim. A petitioner’s claim of actual innocence provides a gateway to federal habeas
review of an otherwise time-barred claim only if the petitioner “persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” See
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (internal quotations and citations omitted). Here, the petitioner
has presented no new evidence of innocence. Indeed, his “evidence” consists of new arguments that he now seeks
to assert. In addition, the petitioner waited numerous years to file the instant petition, a fact that further undermines
any actual innocence claim. See id. at 1936 (“The timing of such a petition … should seriously undermine the
credibility of the actual-innocence claim.”).

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