Rocco v. Lawler et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS/ORDER DISMISSING CASE - ACCORDINGLY, this 1st day of Sept., 2011, it is ordered that upon con. of the R&R of the mag. judge 22 , filed 06/06/11, to which no objs. were filed, & upon independent review of the record, it is ordered that: 1. The mag. judge's report is adopted. 2. Petnr.'s objs. 24 are overruled. 3. Petnr's petn. for a writ of H/C pur. to 28 USC 2254 is dism'd as untimely. 4. A cert. of appealability is denied. 5. The Clerk of Crt. shall close this file. (See order for complete details. 12 Signed by Honorable William W. Caldwell on 9/1/11. (am, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LOUIS JAMES ROCCO
Petitioner
vs.
RAYMOND M. LAWLER and
ATTORNEY GENERAL OF
PENNSYLVANIA
Respondents

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: CIVIL NO. 1:10-CV-1237
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ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
We are considering a Report and Recommendation by Magistrate Judge
Mannion, wherein he recommends that we dismiss petitioner Louis James Rocco’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as untimely. Since
objections were filed, the Court must “make a de novo determination of those portions of
the report or specified proposed finding or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(c).
In a thorough report, Judge Mannion concluded that Rocco was time barred
from filing a § 2254 petition. We agree. However, petitioner claims he is entitled to
equitable tolling of the one-year statute of limitations because of his attorney’s failure to
timely file an appeal of petitioner’s PCRA denial. Rocco is entitled to equitable tolling if
he diligently pursued his rights and extraordinary circumstances prevented timely filing.
Cramer v. Sec’y Pa. Dept. Of Corrections, No. 07-2782, 2011 WL 1505367, at *2 (3d Cir.
2011). However, petitioner’s unsupported claim that his attorney failed to timely file an

appeal does not constitute “extraordinary circumstance.” See Fahy v. Horn, 240 F.3d
239, 245 (3d Cir. 2001)(“In non-capital cases, attorney error, miscalculation, inadequate
research, or other mistakes have not been found to rise to the “extraordinary”
circumstances required for equitable tolling.)
ACCORDINGLY, this 1st day of September, 2011, it is ordered that upon
consideration of the report and recommendation of the magistrate judge (Doc. 22), filed
June 6, 2011, to which objections were filed, and upon independent review of the record,
it is ordered that:
1. The magistrate judge’s report is adopted.
2. Petitioner’s objections (Doc. 24) are overruled.
3. Petitioner’s petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 is dismissed as untimely.
4. A certificate of appealability is denied.
5. The Clerk of Court shall close this file.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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