SCALES v. HARRY et al

Filing 8

ORDER THAT THE REPORT AND RECOMMENDATION (DOC. NO. 5) IS APPROVED AND ADOPTED; SCALES'S PETITION UNDER 28 USC, SECTION 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (DOC. NO. 1-1) IS DISMISSED WITHOUT AN EVIDENTIARY HEARING. SCALE S'S MOTION FOR APPOINTMENT OF COUNSEL (DOC NO. 3) IS DENIED; SCALES'S MOTION FOR ENLARGEMENT OF TIME TO FILE MEMORANDUM OF LAW FOR HABEAS CORPUS, NUNC PRO TUNC (DOC. NO. 7) IS DENIED. A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; THE CLERK OF COURT SHALL MARK THIS MATTER CLOSED FOR STATISTICAL PURPOSES.. SIGNED BY HONORABLE LEGROME D. DAVIS ON 7/22/14. 7/22/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER.(pr, ) Modified on 7/22/2014 (pr, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN SCALES,
Petitioner,

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v.
LAUREL HARRY et al.,
Respondents.

CIVIL ACTION

NO. 14-3133

ORDER
AND NOW, this 22nd day of July 2014, upon consideration of the Report and
Recommendation of United States Magistrate Judge Timothy R. Rice (Doc. No. 5) and Petitioner
John Scales’s Response and Objection thereto (Doc. No. 6), Scales’s Motion for Appointment of
Counsel (Doc. No. 3), and Scales’s Motion for an Enlargement of Time to File Memorandum of
Law for Habeas Corpus, Nunc Pro Tunc (Doc. No. 7), and upon independent review of Scales’s
Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc.
No. 1-1), it is hereby ORDERED as follows:
1. The Report and Recommendation (Doc. No. 5) (the “R&R”) is APPROVED and
ADOPTED.
This Court must make “a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C).
Scales objects to two aspects of the R&R. First, Scales argues that the R&R
“should be quashed” because it is “premature.” (Scales’s Objs. 2, Doc. No. 6.)
Scales claims that Rule 9.4.3 of the Local Rules of Civil Procedure forbids a
magistrate judge from issuing a report and recommendation in a habeas case until
60 days after the petitioner filed his or her petition. (Id.) Rule 9.4.3, which
applies “in Death Penalty Cases,” directs habeas petitioners to “file, not later than
sixty (60) days after the date of the filing of the petition under §2254 . . . , a
memorandum of law in support.” Local R. Civ. P. 9.4.3. This Rule is
inapplicable because Scales has not been sentenced to death. See Reed v. Harlow,
No. 09-CV-3870, 2009 WL 3737568, at *1 n.1 (E.D. Pa. Oct. 29, 2009)
(declining to consider a habeas petitioner’s memorandum of law because Rule 9.4
“applies to capital habeas petitions”), aff’d on other grounds, 448 F. App’x 236

(3d Cir. 2011); cf. Glover v. Wander, No. 06-CV-1688, 2007 WL 1725236, at *3
(W.D. Pa. June 11, 2007) (rejecting habeas petitioner’s argument that “he was
denied the right to file a memorandum of law, which he claim[ed] should have
been required pursuant to . . . [Rule] 9.4(c) [of the Western District of
Pennsylvania Local Rules of Civil Procedure],” because petitioner “was not
sentenced to death”). Accordingly, Magistrate Judge Rice committed no error by
filing the R&R 35 days after Scales filed his habeas petition.
Second, Scales argues that he timely filed his habeas petition. (Scales’s Objs. 9–
11.) We disagree. Habeas petitions must be filed within a “1-year period of
limitation.” 28 U.S.C. § 2244(d)(1). Subject to exceptions not relevant here, this
one-year period begins to run on “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such
review.” Id. § 2244(d)(1)(A). The running of this limitation period is tolled
while “a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.” Id. §
2244(d)(2).
Scales’s conviction and sentence became final on July 26, 2010. (R&R 3, Doc.
No. 5.) Two hundred and seventy-three days later, on April 25, 2011, Scales filed
a motion under Pennsylvania’s Post Conviction Relief Act. (Id. at 4.) This
motion tolled the limitation period until June 25, 2013, when the Pennsylvania
courts conclusively denied Scales’s motion. (Id.) On that date, Scales had 92
days remaining to file a timely habeas petition. Scales filed his petition on May
12, 2014, which is 229 days after the 92-day period expired. (Id.)
Scales maintains that his petition is timely because he filed it less than one year
after the Pennsylvania courts denied his post-conviction motion. He claims that,
because a post-conviction motion was his first opportunity to bring an ineffectiveassistance-of-counsel claim, the one-year limitation period started running once
the Pennsylvania courts denied his post-conviction motion. This argument is
foreclosed by § 2244(d)(1)(A), which provides that the limitation period begins to
run at “the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A) (emphasis
added). As a result, Scales’s habeas petition is timely only if equitable tolling is
appropriate.
Equitable tolling is warranted where (1) “the defendant has actively misled the
plaintiff,” (2) “the plaintiff has in some extraordinary way been prevented from
asserting his rights,” or (3) “the plaintiff has timely asserted his rights mistakenly
in the wrong forum.” Urcinoli v. Cathel, 546 F.3d 269, 272 (3d Cir. 2008)
(internal quotation marks omitted).
This case presents none of these
circumstances. And the record reveals no reason to believe that applying the oneyear limitation period to Scales’s petition would be unfair. We will therefore
dismiss the petition as untimely.

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2. Scales’s Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody (Doc. No. 1-1) is DISMISSED without an evidentiary hearing.
3. Scales’s Motion for Appointment of Counsel (Doc. No. 3) is DENIED for the
reasons stated in the R&R. (See R&R 6 (“Because [Scales’s] petition should be
dismissed as untimely, the interests of justice do not require the appointment of
counsel.”).)
4. Scales’s Motion for an Enlargement of Time to File Memorandum of Law for
Habeas Corpus, Nunc Pro Tunc (Doc. No. 7) is DENIED. Scales requests “an
enlargement of time to file his memorandum of law.” (Scales’s Mot. Enlargement
Time, Doc. No. 7, at 2.) No such time exists. Cf. Rule 4, Rules Governing
Section 2254 Cases (“The clerk must promptly forward the petition to a judge
. . . , and the judge must promptly examine it. If it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition . . . .”). Indeed, the Local Rules
of Civil Procedure warn habeas petitioners that the court will ordinarily “consider
only those matters which are set forth on the forms provided by the court.” Local
R. Civ. P. 9.3(a).
5. A certificate of appealability SHALL NOT issue.
Scales’s petition is
unambiguously time barred. See Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(“When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, [among other things,] . . .
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.”).
6. The Clerk of Court shall mark this matter CLOSED for statistical purposes.

BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.

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