RICHARDSON v. KAUFFMAN et al

Filing 16

MEMORANDUM. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 6/27/16. 6/29/16 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(mas, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
_______________________________________
KENDALL C. RICHARDSON,
Petitioner,
v.

:
:
:
:
KAUFFMAN et al.,
:
Respondents.
:
_______________________________________

No. 5:15-cv-6362

MEMORANDUM
Motion for Reconsideration, ECF No. 15 - Granted
Report and Recommendation, ECF No. 13 - Approved and Adopted

JOSEPH F. LEESON, JR.
United States District Judge
I.

June 27, 2016

Introduction
On November 27, 2015, Petitioner Kendall Richardson filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on June 1, 2009, in the Court of
Common Pleas of Lehigh County of first degree murder, attempted homicide, robbery, and
recklessly endangering another person, and his July 14, 2009 sentence to a term of life
imprisonment. On April 29, 2016, Magistrate Judge Linda K. Caracappa issued a Report and
Recommendation (“R&R”) discussing the apparent untimeliness of the petition, but
recommending that the habeas corpus petition be stayed and held in abeyance while Petitioner
exhausts his state claims. See Report and Recommendation, ECF No. 13. Specifically,
Petitioner filed an appeal from the PCRA court’s dismissal of his second PCRA petition, which
remains pending in the Pennsylvania Superior Court. Id. 7-8 (citing Superior Court of
Pennsylvania Appeal Docket Sheet, Docket No. 3073 EDA 2015). After Petitioner failed to

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timely file objections to the R&R, this Court adopted the R&R and stayed the proceedings. See
Order dated May 20, 2016, ECF No. 13.
Subsequently, on May 25, 2016, after the time for filing objections had expired, the Court
received Petitioner’s objections to the R&R. ECF No. 14. On June 3, 2016, Petitioner filed a
Motion for Reconsideration of Report and Recommendation, ECF No. 15, asking this Court to
consider his objections as timely filed. In light of Petitioner’s pro se status and the date
Petitioner signed his objections, which was within the time for filing the same, the Motion for
Reconsideration is granted. Nevertheless, after review of the objections, the Court will again
adopt and approve the R&R and grant the motion to stay.
II.

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”). Conversely, in the absence
of objections, the district court is not statutorily required to review the report, under de novo or
any other standard. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 152 (1985). 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).
III.

Analysis
The R&R outlines the procedural history of Petitioner’s underlying state court action.

Petitioner does not object to this timeline. After review, this Court adopts these findings.

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Petitioner does object to the tolling analysis in the R&R. See ECF Nos. 14-15. He
claims that the September 26, 2014 decision of the Pennsylvania Superior Court affirming denial
of his PCRA petition was not docketed in the Court of Common Pleas of Lehigh County until
January 23, 2015, and that this later date, and not the date the decision was issued, should control
for purposes of the time tolled in filing a habeas corpus petition. He does not make any
argument that his second PCRA petition, filed on August 21, 2015, acts to toll the limitations
period.
Even if this Court accepts Petitioner’s dates for the tolling calculation, his habeas corpus
petition is untimely. Between January 23, 2015, and the date the habeas corpus petition was
filed on November 27, 2015, 308 days elapsed. But, an additional 70 days had already elapsed
between the time judgment became final on January 13, 2012, 1 and the date the first PCRA
petition was filed on March 22, 2012. When this additional time is added, a total of 378 days
elapsed before the instant habeas corpus petition was filed, which is beyond the one-year period
of limitations. See 28 U.S.C. § 2244(d).
However, as the R&R correctly concluded, this Court cannot determine whether any time
should also be tolled based on the filing of Petitioner’s second PCRA petition on August 21,
2015, as that matter is still pending in the Pennsylvania Superior Court. See 28 U.S.C. §
2244(d)(2) (“The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.”) (emphasis added). Petitioner’s

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“[A] state court criminal judgment is ‘final’ (for purposes of collateral attack) at the
conclusion of review in the United States Supreme Court or when the time for seeking certiorari
review expires.” Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999). Here the Supreme
Court of Pennsylvania denied allocatur on October 17, 2011. Petitioner did not seek certiorari in
the United States Supreme Court.
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objections do not relate to Judge Caracappa’s recommendation that this matter be stayed pending
exhaustion. After review, the Court adopts the R&R and grants Petitioner’s request for a stay
and abeyance.
A separate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.___________
JOSEPH F. LEESON, JR.
United States District Judge

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