HINES EL v. MOONEY et al
OPINION. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 11/16/17. 11/16/17 ENTERED AND COPIES MAILED TO PRO SE.(mas, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
CRAIG HINES EL,
DISTRICT ATTORNEY OF THE
COUNTY OF BERKS; and
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Report and Recommendation, ECF No. 6 - Adopted
Joseph F. Leeson, Jr.
United States District Judge
November 16, 2017
Craig Hines El filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, alleging that his state probation was revoked and he was resentenced to one to five years
on December 10, 2001. See Commonwealth v. Craig Ryan Hines, CP-06-CR-0001026-1994
(“first case”). At the time of resentencing, he had unrelated charges pending against him. See
Commonwealth v. Craig Ryan Hines, CP-06-CR-0005330-2001 (“second case”). He was
subsequently convicted in this second case and, on July 19, 2005, was sentenced to fifteen to
thirty years. In his habeas petition, he complains that the Pennsylvania Board of Probation and
Parole (“Board”) essentially changed his sentence in the first case to a flat five-year term and
denied him the opportunity to apply for parole.
Magistrate Judge Lynne A. Sitarski issued a Report and Recommendation (“R&R”)
recommending that the habeas corpus petition filed on July 24, 2015, be dismissed as untimely.
Petitioner has filed objections to the R&R. After de novo review and for the reasons set forth
below, the R&R is adopted and the habeas petition is dismissed as untimely.
STANDARD OF REVIEW
When objections to a report and recommendation have been filed under 28 U.S.C. §
636(b)(1)(C), the district court must make a de novo review of those portions of the report to
which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989);
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (“providing a complete de novo determination
where only a general objection to the report is offered would undermine the efficiency the
magistrate system was meant to contribute to the judicial process”). “District Courts, however,
are not required to make any separate findings or conclusions when reviewing a Magistrate
Judge’s recommendation de novo under 28 U.S.C. § 636(b).” Hill v. Barnacle, 655 F. App’x.
142, 147 (3d Cir. 2016). The district “court may accept, reject, or modify, in whole or in part,
the findings and recommendations” contained in the report. 28 U.S.C. § 636(b)(1)(C).
In the first of six objections, 1 Hines El argues that the section in the R&R titled Relevant
Procedural History is misleading and erroneous. After de novo review, this Court finds no errors
in the procedural history, adopts this section without change, and overrules the objection.
The second and third objections, challenging the Magistrate Judge’s failure to address the
merits of the habeas claims, are also overruled because the habeas corpus petition is dismissed as
Although this Opinion does not specifically discuss each of the arguments raised in the
objections, all of the objections have been given de novo review.
To the extent that the fourth objection addresses the merits of the habeas claims, it is
overruled for the same reasons. To the extent that this Court could construe the objection as
raising a tolling argument, it is overruled because even if this Court were to toll the period of
limitations during the time it took the Board to aggregate the sentence (until January 27, 2006),
see ECF No. 3, the habeas petition was not filed until almost ten years later. See 28 U.S.C. §
2244(d)(1) (establishing a one-year period of limitation for a person in custody pursuant to the
judgment of a State to file an application for writ of habeas corpus in federal court). Hines El
has also failed to show that his transfer to a correctional facility in Virginia from 2009 to 2012,
or that the subsequent appointment of “no less than seven attorneys” to assist him in litigating the
second case upon return to the Pennsylvania Court of Common Pleas amounted to extraordinary
circumstances to excuse his delay and warrant equitable tolling. See Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005) (holding that “a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way”).
In his fifth objection, Hines El argues that post-trial litigation is ongoing in the second
case, with which the probation revocation sentence was aggregated. The suggestion that perhaps
the matter is unexhausted, however, is unpersuasive as a petitioner’s challenge to the Board’s
denial of parole need not be exhausted, which both the Magistrate Judge and Hines El recognize.
See DeFoy v. McCullough, 393 F.3d 439, 442-45 (3d Cir. 2005), cert. denied, 545 U.S. 1149
(2005). He further suggests in this objection that the Magistrate Judge concluded that his oneyear period of limitations does not begin until 2020 (the minimum date for parole as determined
by the Board). If true, however, the habeas petition is not yet ripe and must nevertheless be
dismissed. All arguments presented in the fifth objection are therefore overruled.
For the reasons set forth herein and for those provided by the Magistrate Judge, the sixth
objection, which essentially contains merits arguments and repeats previously addressed
objections, is also overruled.
After applying de novo review, this Court concludes that Magistrate Judge Sitarski
correctly determined that the instant petition for writ of habeas corpus is untimely and that no
exceptions to the period of limitations apply. This Court therefore adopts the recommendation to
dismiss the habeas petition as untimely, and concludes that there is no basis for the issuance of a
certificate of appealability 2 because jurists of reason would not find it debatable that the petition
is time-barred, and is not subject to equitable tolling.
A separate Order will be issued.
BY THE COURT:
/s/ Joseph F. Leeson, Jr._____________
JOSEPH F. LEESON, JR.
United States District Judge
“When, as here, the district court denies relief on procedural grounds, the petitioner
seeking a COA must show both ‘that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.’” Gonzalez v.
Thaler, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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