DIPANFILO, JR. v. SUPERINTENDENT MOONEY et al

Filing 19

ORDERED THAT THE REPORT AND RECOMMENDATION IS APPROVED; WE DENY AND DISMSS THE PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILTY AND THE CLERK OF COURT SHALL CLOSE THIS CASE. SIGNED BY HONORABLE MARK A. KEARNEY ON 8/3/19. 8/30/19 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JUSTIN JOHN DIPANFILO, JR.
v.

CIVIL ACTION
NO. 18-1690

SUPERINTENDENT MOONEY, et al.

ORDER
AND NOW, this 30th day of August 2019, upon careful and independent consideration of
the Petition for a writ of habeas corpus (ECF Doc. No. 1), Response to the Petition (ECF Doc. No.
16), Judge Strawbridge's August 8, 2019 Report and Recommendation (ECF Doc. No. 17), and
absent timely objections, it is ORDERED:
1.

Judge Strawbridge's comprehensive August 8, 2019 Report and Recommendation

(ECF Doc. No. 17) is APPROVED;
2.

We DENY and DISMISS the Petition for writ of habeas corpus (ECF Doc. No. 1)

with prejudice; 1
3.
4.

1

There is no probable cause to issue a certificate of appealability; 2 and,
The Clerk of Court shall CLOSE this case.

Mr. DiPanfilo petitions for a writ of habeas corpus arguing he "got too much time." ECF Doc.
No. 1. On December 14, 2015, the Montgomery County Court of Common Pleas convicted Mr.
DiPanfilo of burglary, trespass, simple assault, theft, receiving stolen property, possession of an
instrument of crime, and attempted theft. ECF Doc. No. 1, at p. 1. Citing a prior violent conviction,

the court sentenced Mr. DiPanfilo to a mandatory minimum sentence of eleven to twenty-two years
incarceration followed by five years probation. ECF Doc. No. 1, at p. 1.
On August 8, 2019, Judge Strawbridge recommended we dismiss Mr. DiPanfilo's petition as
procedurally defaulted and nevertheless not cognizable. ECF Doc. No. 17, at p. 4. Judge
Strawbridge explained Mr. DiPanfilo can only petition for habeas after he exhausts his claim by
"fairly present[ing]" his claim in "one complete round of the state's established appellate review
process." O'Sullivan v. Boerckel, 526 U.S. 838,845 (1999). A petitioner procedurally defaults his
claim by failing to exhaust. Judge Strawbridge found Mr. DiPanfilo did not raise his claim for
receiving an excessive sentence in state court. Even assuming he did not procedurally default his
claim, Judge Strawbridge found Mr. DiPanfilo failed to raise a cognizable claim. Judge
Strawbridge explained the sentence does not violate the Constitution since it does not exceed a
statutory minimum. The Pennsylvania General Assembly set a maximum sentence of twenty years
for burglary and two years for simple assault. The Court of Common Pleas did not exceed the
maximum sentence for Mr. DiPanfilo's convictions.
Mr. DiPanfilo failed to file objections to Judge Strawbridge's Report and Recommendation. After
careful and independent review of Mr. DiPanfilo's petition, the District Attorney's Office's
Response, and Judge Strawbridge's Report and Recommendation, Mr. DiPanfilo's habeas petition
is procedurally defaulted and he fails to raise a cognizable claim. We dismiss Mr. DiPanfilo's
petition for writ of habeas corpus.
2

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,484 (2000).

2