JONES v. MCGINLEY

Filing 16

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR A WRIT OF HABEAS CORPUS IS DISMISSED WITH PREJUDICE; THERE IS NO PROBABLE CAUSE FOR A CERTIFICATE OF APPEALABILITY; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES.. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 3/19/18. 3/20/18 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
PAUL SEAN JONES

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v.
THOMAS MCGINLEY, et al.

CIVIL ACTION

NO. 17-1024

ORDER
AND NOW, this 19th day of March, 2018, upon careful and independent consideration of
the petition for a writ of habeas corpus, together with the response thereto, and after review of
the Report and Recommendation of United States Magistrate Judge Elizabeth T. Hey, and the
objection thereto,1 I HEREBY ORDER that:
1.

The Report and Recommendation is APPROVED and ADOPTED.

2.

The petition for a writ of habeas corpus is DISMISSED with prejudice.

3.

There is no probable cause for a certificate of appealability.

4.

The Clerk of Court shall mark this case closed for statistical purposes.
BY THE COURT:

/s J. William Ditter, Jr.
J. WILLIAM DITTER, JR. J.

1

In his Objection, Petitioner argues that, contrary to Judge Hey’s conclusion, his federal
habeas petition is timely. In support thereof, he contends that the Pennsylvania courts
erroneously categorized his second petition for collateral for relief as “untimely.” He also claims
that because his state filing was filed prior to the expiration of the federal statute of limitations,
then it should be considered timely filed making his federal habeas petition timely as well. This
argument is without merit. As Judge Hey pointed out, “[w]hen a postconviction petition is
untimely under state law, ‘that [is] the end of the matter’ for purposes of § 2242(d)(2).” See Rep.
and Recommendation (Feb. 21, 2018) (Doc. No. 12), at 7-8 (citing Pace v. DiGuglielmo, 544
U.S. 408, 414 (2005) (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)). The Pennsylvania
courts determined that Petitioner’s second petition for collateral relief was untimely, thus it did
not toll the federal statute of limitations. Petitioner’s habeas petition is untimely.