LUGO v. ROZUM et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS THAT MAGISTRATE JUDGE RUETERS REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. IT IS FURTHER ORDERED THAT PETITIONERS OBJECTIONS TO MAGISTRATE JUDGE RUETERS REPORT AND RECOMMENDATION ARE OVERRULED. IT IS FU RTHER ORDERED THAT THE PRO SE PETITION FOR HABEAS CORPUS RELIEF IS DISMISSED AS TIME-BARRED BY THE STATUTE OF LIMITATIONS. IT IS FURTHER ORDERED THAT THE APPLICATION FOR STAY AND ABEYANCE IS DENIED. IT IS FURTHER ORDERED THAT BECAUSE PETITIONER DOES NOT DEMONSTRATE A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT, AND BECAUSE REASONABLE JURISTS COULD NOT FIND THIS RULING DENYING HABEAS CORPUS RELIEF DEBATABLE, A CERTIFICATE OF APPEALABILITY IS DENIED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL CLOSE THIS MATTER FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 6/27/16. 6/28/16 ENTERED AND COPIES MAILED PRO SE, E-MAILED.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DANIEL LUGO,
Petitioner
vs.
GERALD ROZUM,
THE DISTRICT ATTORNEY OF THE
COUNTY OF LEHIGH and
THE ATTORNEY GENERAL OF THE
STATE OF PA,
Respondents

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) Civil Action
) No. 13-cv-03943
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O R D E R

NOW, this 27th day of June, 2016, upon consideration of
the following documents:
(1)

(2)

Response to Petition for Writ of Habeas
Corpus, which response was filed on behalf of
respondents on March 27, 2014;

(3)

Application for Stay and Abeyance, which
application was filed by petitioner pro se on
April 17, 2014;

(4)

Report and Recommendation of United States
Magistrate Judge Thomas J. Rueter dated and
filed April 15, 2014; and

(5)

1

Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody,
filed by petitioner Daniel Lugo pro se on
June 24, 2013;1 together with

Objections to Report and Recommendation filed
by petitioner pro se on June 6, 2014;

Mr. Lugo’s petition for writ of habeas corpus was filed in this
court on July 8, 2013. However, the petition itself indicates that it was
signed by petitioner on June 24, 2013 and placed in the prison mailing system
that same date. Thus, giving petitioner the benefit of the prison mailbox
rule, (See Burns v. Morton, 134 F.3d 109 (3d Cir. 1998) and Rule 3(d) of the
Rules Governing Section 2254 Cases in the United States District Courts), I
consider June 24, 2013 the filing date of Mr. Lugo’s petition.

it appearing that petitioner’s objections to Magistrate Judge
Rueter’s Report and Recommendation are a restatement of the
issues raised in his underlying petition for habeas corpus relief
and are without merit; it further appearing after de novo review
of this matter that Magistrate Judge Rueter’s Report and
Recommendation correctly determined the legal and factual issues
presented in the petition for habeas corpus relief,
IT IS ORDERED that Magistrate Judge Rueter’s Report and
Recommendation is approved and adopted.
IT IS FURTHER ORDERED that petitioner’s objections to
Magistrate Judge Rueter’s Report and Recommendation are
overruled.2

2

When objections are filed to a magistrate judge’s report and
recommendation, we are required to make a de novo determination of those
portions of the report, findings or recommendations made by the magistrate
judge to which there are objections. 28 U.S.C. § 636(b)(1); Rule 72.1(IV)(b)
of the Rules of Civil Procedure for the United States District Court for the
Eastern District of Pennsylvania. Furthermore, district judges have wide
latitude regarding how they treat recommendations of the magistrate judge.
See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424
(1980).
Indeed, by providing for a de novo determination, rather than a de
novo hearing, Congress intended to permit a district judge, in the exercise of
the court’s sound discretion, the option of placing whatever reliance the
court chooses to place on the magistrate judge’s proposed findings and
conclusions. I may accept, reject or modify, in whole or in part any of the
findings or recommendations made by the magistrate judge. Raddatz, supra.
As noted above, I conclude that petitioner’s objections to
Magistrate Judge Rueter’s Report and Recommendation are nothing more than a
restatement of the underlying claims contained in his petition for habeas
corpus. Moreover, upon review of the Report and Recommendation, together with
de novo review of this matter, I conclude that the Report and Recommendation
correctly determines the legal issues raised by petitioner.

-2-

IT IS FURTHER ORDERED that the pro se petition for
habeas corpus relief is dismissed as time-barred by the statute
of limitations.
IT IS FURTHER ORDERED that the Application for Stay and
Abeyance is denied.3
IT IS FURTHER ORDERED that because petitioner does not
demonstrate a substantial showing of the denial of a
constitutional right, and because reasonable jurists could not
find this ruling denying habeas corpus relief debatable, a
certificate of appealability is denied.
IT IS FURTHER ORDERED that the Clerk of Court shall
close this matter for statistical purposes.
BY THE COURT:

/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge

3
Petitioner seeks to have this court delay decision in this matter
through the stay and abeyance procedure approved by the United sattes Supreme
Court in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440
(2005). However, I conclude that petitioner has not raised a potentially
meritorious claim under the United States Supreme Court holding in
Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016)
that the Supreme Court ruling in Miller v. Alabama, __ U.S. __,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) be given retroactive effect.

Specifically, I conclude that Montgomery and Miller do not apply
to petitioner’s sentence because he was twenty-two years old at the time he
committed the offenses and because he did not receive a mandatory life
sentence. See Report and Recommendation at page 2, footnote 1. Thus, because
I conclude that petitioner is not entitled to any relief under Montgomery and
Miller, I conclude that there is no legal reason to stay and abey this matter.
Accordingly, I deny petitioner’s Application for Stay and
Abeyance.

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