WELK v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 9

ORDER THAT THE REPORT AND RECOMMENDATION IS APPRVOED AND ADOPTED IN PART AND REJECTED IN PART; PETTIONER'S OBJECTIOINS ARE OVERRULED; THE PETITION FORE WRIT OF HABEAS CORPUS IS DISMISSED WITH PREJUDICE; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/15/14. 1/15/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION
NO. 12-4928

RICHARD NELSON WELK,
Petitioner,

v.
COMMONWEALTH OF PENNSYLVANIA,
Respondent.
0 R D E R

AND NOW, this 14th day of January, 2014, after review of
the Report and Recommendation of United States Magistrate Judge
Lynne A. Sitarski (ECF No. 6) and Petitioner's objections
thereto (ECF No. 7) , 1 it is hereby ORDERED as follows:

(1) The Report and Recommendation is APPROVED and ADOPTED
in part and REJECTED in part; 2

1

The Court undertakes a - - - review of the
de novo
portions of the Report and Recommendation to which a party has
objected. See 28 u.s.c. § 636(b) (1) (2012); Cont'l Cas. Co. v.
Dominick D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). 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) .
2

Magistrate Judge Sitarski concludes that Welk's
petition is untimely, but then goes on to also analyze the
substance of his claims "for the sake of completeness." Report
& Recommendation 12, ECF No. 6. Because that analysis is
unnecessary to the resolution of Welk's petition, the Court
declines to adopt Part B of the Report and Recommendation, which
considers the merits of Welk's allegations.
The Court does
adopt Part A, however, and agrees with the recommended
disposition.

(2) Petitioner's Objections to the Report and
Recommendation are OVERRULED; 3

3

Magistrate Judge Sitarski recommends that the Court
deny Petitioner's § 2254 petition because the petition is
untimely under the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA").
Pursuant to the AEDPA, "a state prisoner
ordinarily has one year to file a federal petition for habeas
corpus, starting from '[t]he date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review.'" McQuiggin v. Perkins, 133
S. Ct. 1924, 1929 (2013) (quoting 28 U.S.C. § 2244 (d) (1} (A)).
Although the statute of limitations may be tolled while a
properly filed petition under Pennsylvania's Post Conviction
Relief Act ("PCRA") is pending, 28 U.S.C. § 2244 (d) (2), "an
untimely PCRA petition does not toll the statute of limitations
for a federal habeas corpus petition," Merritt v. Blaine, 326
F.3d 157, 165 (3d Cir. 2003).
The record here shows that Welk filed his first PCRA
petition on January 15, 2009, before the date on which his
judgment became final.
The Pennsylvania Supreme Court denied
that petition on September 27, 2010, which means that - absent
additional tolling- Welk had until September 27, 2011 to file a
federal habeas petition. Welk then filed a second PCRA
petition, but that petition was denied as untimely, and thus did
not toll the federal habeas time limit. Accordingly, the
instant petition, which was filed on July 24, 2012, is untimely
under the AEDPA.
In his objections, Welk says that he believes "that
the time lapse was due to the courts not responding within a
reasonable time frame" to his petitions. Objections 4, ECF No.
7. He seems to base that assertion on the presumption that all
PCRA petitions toll the federal statute of limitations.
See id.
But, unfortunately for Welk, that is not the law, as the Third
Circuit has clearly held that PCRA petitions that the state
supreme court deems untimely are not "properly filed" under the
AEDPA. Merritt, 326 F.3d at 165-66. The Pennsylvania Supreme
Court denied Welk's second PCRA petition as untimely, and thus
the federal statute of limitations was not tolled while that
petition was pending. Welk has not suggested any other basis
for statutory or equitable tolling, and so his petition must be
2

(3) The Petition for a Writ of Habeas Corpus (ECF No. 1) is
DENIED and DISMISSED WITH PREJUDICE;
(4) A certificate of appealability shall not issue; and
(5) The Clerk shall mark this case CLOSED.

AND IT IS SO ORDERED.

;U--

~

c. ~ ~

EDUARDO C. ROBRENO, J.

denied.

3

.