Dries v. Commonwealth of Pennsylvania et al
Filing
15
ORDER ADOPTING REPORT AND RECOMMENDATION: adopting 14 Report and Recommendation; petition for writ of h/c is dismissed with prejudice; clerk directed to close the case.Signed by Honorable Matthew W. Brann on 1/17/17. (case closed)(lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES A. DRIES
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA, et al.
Respondents.
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No. 4:15-cv-00129
(Judge Brann)
ORDER
January 17, 2017
On December 15, 2016, United States Magistrate Judge Joseph F. Saporito,
Jr., submitted a Report and Recommendation to this Court, wherein he
recommended that the instant petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 be dismissed with prejudice. ECF No. 14 at 9. Judge Saporito
reasoned that such a disposition was appropriate because the applicable statute
of limitations had expired absent any justification for equitable tolling and
because the petitioner nevertheless had failed to diligently pursue his rights.
I agree and will adopt Judge Saporito’s recommendation in full, adding the
following supplemental justification, which springs from the clear text of the
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contested portion of the cited state court order (“provided that the Defendant
does not file an appeal or a postsentence motion”):
A collateral attack brought in the federal system under 28 U.S.C.
§ 2254 is not “an appeal” or “a postsentence motion” brought in
state court following the conclusion of a state prosecution. See,
e.g., United States v. Linder, 552 F.3d 391, 393 (4th Cir. 2009) (“Of
course, a collateral attack is distinct from a direct appeal. Thus,
under the plain language of the plea agreement, Linder did not
waive his right to file a § 2255 motion. See United States v. Pruitt, 32
F.3d 431, 433 (9th Cir.1994) (“A plea agreement does not waive the
right to bring a § 2255 motion unless it does so expressly. The
government gets what it bargains for but nothing more.”)). See also
Stoufflet v. United States, 757 F.3d 1236, 1240 (11th Cir. 2014) (“Even
though the clerk dockets a collateral attack by a federal prisoner on
the same docket as the original prosecution and even though the
same court of appeals that considered his direct appeal will also
consider any appeal arising from his collateral attack, the collateral
attack is distinct from the original prosecution that ended in a final
judgment against the prisoner.”). In addition, contrast Pa. R. Crim.
P. 720(B)(1)(a) (“Post-Sentence Procedures”) with Pa. R. Crim. P. 901
& 902 (“Post-Conviction Collateral Proceedings”). Moreover, postsentence motions, appeals, and collateral attacks have distinct
statutes of limitations: 10-days after imposition of sentence for a
post-sentence motion, Pa. R. Crim. P. 720(A)(1); 30 days after
disposition of any post-sentence motions or 30 days after imposition
of judgment if no post-sentence motions were filed for an appeal, Pa.
R. Crim. P. 720(A)(2)–(3); and one year from the entry of final
judgment for a collateral attack, Pa. R. Crim. P. 901(A). The federal
regime mimics this final limitations period. 28 U.S.C.A. § 2244(d)(1).
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“The law helps those who help themselves, generally aids the vigilant, but
rarely the sleeping, and never the acquiescent.” Hannan v. Dusch, 154 Va. 356,
379 (1930). AND NOW, THEREFORE, consistent with the foregoing reasoning
as well as that contained within the accompanying Report and Recommendation,
IT IS HEREBY ORDERED that:
1.
The Report and Recommendation of United States Magistrate Judge
Joseph F. Saporito, Jr., ECF No. 14, is ADOPTED IN FULL.
2.
The instant petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, ECF No. 1, is DISMISSED WITH PREJUDICE.
3.
The Clerk of Court is directed to close this case.
BY THE COURT:
/s Matthew W. Brann
Matthew W. Brann
United States District Judge
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