MOUA v. KERESTES et al

Filing 21

ORDERTHAT MOUA'S OBJECITONS TO THE REPORT AND RECOMMENDATION (DOC. 16) ARE OVERRULED; THE REPORT AND RECOMMENDATION (DOC. 13) IS APPROVED AND ADOPTED; MOUA'S PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) IS DENIED; A CERTIFICATE OF APPEALABIL ITY SHALL NOT ISSUE, AS MOUA HAS NOT DEMONSTRATED THAT REASONABLE JURISTS WOULD DEBATE THE CORRECTNESS OF THIS PROCEDURAL RULING. THE CLERK OF COURT IS DIRECTED TO MARK THIS CASE CLOSED.. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 9/21/16. 9/22/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL. (pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEE CHONG MOUA

FILED S[p 2
·

720/6

CIVIL ACTION

v.

No. 15-591

JOHN KERESTES, et al.

ORDER

AND NOW, this 21st day of September, 2016, upon careful and independent
consideration of Petitioner Lee Chong Moua's pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United
States Magistrate Judge Thomas J. Rueter and Moua's objections thereto, it is ORDERED:
1.

Moua's Objections to the Magistrate's Report and Recommendation (Document

16) are OVERRULED 1;

1

In his objections to the Report and Recommendation, Moua raises no issues that would cause
the Court to disturb Judge Reuters's conclusion that the statute of limitations under 28 U.S.C. §
2244(d)(l) bars consideration of Moua's habeas petition.
Moua asserts he is entitled to equitable tolling due to extraordinary circumstances;
namely, attorney abandonment. He provides an undated affidavit of Walt Weaver, asserting he
helped Moua retain an attorney, Jack Briscoe, in 1997, but Briscoe took no action between the
date of his hire and 2006. Pet' r's Objections, Attach. A. However, even if Moua was abandoned
by his attorney, he fails to allege or show he pursued any action to remedy such abandonment,
and, therefore, fails to show he diligently pursued his rights. See Holland v. Florida, 560 U.S.
631, 649 (2010) (holding equitable tolling of federal habeas statute of limitations permitted only
where petitioner shows: "(l) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing" (internal quotation
marks and citation omitted)); Ross v. Varano, 712 F.3d 784, 800 (3d Cir. 2013) (holding an
attorney's malfeasance, combined with petitioner's reasonable diligence to pursue his rights,
may warrant equitable tolling); cf Seitzinger v. Reading Hosp. & Med Ctr., 165 F.3d 236, 242
(3d Cir. 1999) (holding equitable tolling appropriate where attorney affirmatively misrepresented
to his client he timely filed a complaint when he had not and plaintiff demonstrated extreme
diligence in pursuing her claim).
Moua further asserts the Third Circuit's change of law established in Cox v. Horn, 757
F.3d 113 (3d Cir. 2014) requires the Court to "take[ ] into account all the particulars of a

ENTERED
SEP 2 2 2016

CLERK OF COURT

2.

The Report and Recommendation (Document

13) is APPROVED and

ADOPTED;
3.

Moua's Petition for Writ of Habeas Corpus (Document 1) is DENIED;

4.

A certificate of appealability shall not issue, as Moua has not demonstrated that

reasonable jurists would debate the correctness of this procedural ruling. See 28 U.S.C.

§ 2253(c)(2); Slackv. McDaniel, 529 U.S. 473, 484 (2000).
5.

The Clerk of Court is DIRECTED to mark this case CLOSED.

BY THE COURT:

Isl Juan R. Sanchez
Juan R. Sanchez, J.

movant's case." Pet'r's Objections at 2-3 (quoting Cox, 757 F.3d at 122). The Cox court held
that although Martinez v. Ryan, 132 S. Ct. 1309 (2012) by itself is an insufficient basis for reopening a federal habeas petition under Federal Rule of Civil Procedure 60(b)(6), Martinez in
conjunction with other equitable factors could constitute extraordinary circumstances meriting
Rule 60(b)(6) relief. Id. at 124. Cox, however, is inapplicable to the timeliness of Moua's
federal habeas petition. Accordingly, Benton's objections are denied.
2