FITZGERALD v. THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY et al

Filing 20

MEMORANDUM ORDER granting 10 respondents' Motion to Dismiss; dismissing 1 petitioner's Petition for Writ of Habeas Corpus; denying certificate of appealability; and adopting 16 Report and Recommendation of Judge Lenihan as the opinion of the court. The Clerk shall mark this case CLOSED. Signed by Judge David S. Cercone on 3/21/12. (njt)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KENYA FITZGERALD,
Petitioner,

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v.
ATTORNEY GENERAL OF THE
COMMONWEAL TH OF
PENNSYL VANIA, et ai.,
Respondents.

2:11cv515
Electronic Filing
District Judge David S. Cercone
Chief Magistrate Judge Lisa Pupo Lenihan

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MEMORANDUM ORDER
Petitioner, Kenya Fitzgerald, initiated this action by filing a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, (ECF Nos. 1, 6), and this case was referred to United
States Magistrate Judge Lisa Pupo Lenihan for pretrial proceedings in accordance with the
Magistrate Judge's Act, 28 U.S.c. § 636(b)(l), and Local Rules 72.C and 72.D.
Respondents filed a Motion to Dismiss (ECF No. 10) the habeas petition asserting that
the petition was untimely filed, and Petitioner filed a response in opposition to the motion (ECF
No. 15). On January 25, 2012, the Magistrate Judge entered a Report and Recommendation
(ECF No. 16) recommending that Respondents' motion be granted, the habeas petition be
dismissed as untimely, and a certificate of appealability be denied. Petitioner was served with
the Report and Recommendation at his listed address and advised that he had until February 13,
2012, to file written objections. Shortly thereafter, Petitioner moved for and was granted an
extension until March 7, 2012, to file objections. As of the date of this order, no objections have
been filed.

After de novo review of the pleadings and documents in the case, together with the
Report and Recommendation, the following order is entered.

S',..,

AND NOW, this ,2..1 day of March, 2012,

IT IS HEREBY ORDERED that Respondents' Motion to Dismiss (ECF No.1 0) is
GRANTED and Petitioner's Petition for Writ of Habeas Corpus is hereby DISMISSED as
untimely.

IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 16) dated
January 25,2012, is ADOPTED as the opinion of the Court.

IT IS FURTHER ORDERED that the Clerk of the Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(l) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.

David Stewart Cercone
United States District Judge
cc:

Kenya Fitzgerald
FQ-4597
SCI Dallas
1000 Follies Road
Dallas, PA 18612
(Via First Class Mail)
Rusheen R. Pettit, Esquire
(Via CMlECF Electronic Mail)

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