OTERO v. LANE et al

Filing 23

ORDER granting 18 Motion to Dismiss and adopting Report and Recommendations re 21 Report and Recommendations. The Clerk shall mark this case CLOSED. Signed by Judge Barbara Rothstein on 2/14/2018. (kly)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD DANIEL OTERO,

Civil Action No. 16-287

Petitioner,
ORDER ADOPTING THE REPORT
AND RECOMMENDATION AND
DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS

v.
JAY LANE, et al.,
Respondent.

Before the Court is the Report and Recommendation (“R&R”) [21] of the Honorable Susan
Paradise Baxter, United States Magistrate Judge, recommending the grant of Respondent’s motion
to dismiss of Petitioner’s petition for a writ of habeas corpus [18]. Specifically, the R&R states
that in May 2011, Petitioner was sentenced in the Court of Common Pleas of Warren County for
various state crimes. Id. at 1 (citing Commonwealth v. Otero, No. 994 WDA 2011 (Pa. Super. Ct.
Feb. 7, 2012)). Pursuant to Pennsylvania code, 42 Pa. C. S. § 9545(b)(3), Petitioner’s judgment
became final on or about March 9, 2012. Doc. 21 at 1-2 (citing Gonzalez v. Thaler, 565 U.S. 134,
149-50 (2012), Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000)). Pursuant to 28 U.S.C.
§ 2244(d)(1), Petitioner had until approximately March 9, 2013 to file his § 2254 petition.
Petitioner did not file the instant § 2254 petition until November 2016. Doc. 2. In his petition,
Petitioner does not acknowledge—or provide any reason as to why—he did not file his petition
earlier. See id. Neither is there any unalleged basis, the R&R finds, to equitably toll § 2244(d)(1)’s
one-year statute of limitations. Doc. 21 at 3 (citing Holland v. Florida, 560 U.S. 631, 645 (2010)).
Thus, the R&R recommends dismissing Petitioner’s § 2254 petition as untimely, and denying a
certificate of appealability. Doc. 21 at 2-5. Petitioner timely filed a document titled “object[ions]”
1

to the R&R. Doc. 22. However, Petitioner’s Objections consist of five paragraphs, only one of
which mentions the R&R, and none of which address the substance of the R&R. See id.
Accordingly, Petitioner’s Objections do not trigger de novo review. Goney v. Clark, 749 F.2d 5,
6-7 (3d Cir. 1984). In any event, the R&R is correct that “[a] 1-year period of limitation,”
beginning “on the date on which the judgment became final,” “shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C.
§ 2244(d)(1)(a). Thus, Petitioner’s § 2254 petition is untimely, and, therefore, Respondent’s
motion to dismiss [18] is GRANTED, and a certificate of appealablity is denied.
IT IS SO ORDERED.
DATED this 14th day of February, 2018.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

2