Opinion
CIVIL ACTION NO. 3:19-cv-00482
01-24-2020
HERBERT APONTE, Petitioner, v. COMMONWEALTH OF PENNSYLVANIA, Respondent.
(CAPUTO, J.)
() REPORT AND RECOMMENDATION
On March 18, 2019, the Court received and lodged the instant petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2254. (Doc. 1). The petition was accompanied by neither the requisite $5 filing fee nor a motion for leave to proceed in forma pauperis. The petitioner, Herbert Aponte, sought relief with respect to a January 2007 misdemeanor conviction and sentence in Monroe County, Pennsylvania. On May 8, 2019, the Court dismissed the petition without prejudice for failure to pay the requisite filing fee. (Doc. 7.)
At the time of the lodging of this federal habeas petition, the petitioner provided the Court with a mailing address at 455 East 138th Street, Long Island, New York 11106. This address, however, was either incorrect or immediately outdated. Beginning as early as the day after his petition was received and lodged, correspondence mailed from the Court to the petitioner at the address he had provided was returned by the postal service as undeliverable. (See Doc. 5; Doc. 6; Doc. 8; Doc. 11.) Apparently, after submitting his petition to the Court, the petitioner had immediately relocated to a new residence at 259 Robinson Avenue, Bronx, New York 10465. (See Doc. 9; Doc. 12; Doc. 13.) But he failed to apprise the Court of this new address until December 2019, more than six months after his petition had been dismissed for failure to pay the requisite filing fee.
Now, it is entirely unclear to us where he resides. His most recent filing includes two addresses on it. (Doc. 13.)
On December 26, 2019, the Court received and filed a motion by the petitioner for vacatur of the order dismissing his petition, which we liberally construe as a Rule 60(b) motion for reconsideration. (Doc. 12.) See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a federal court's obligation to liberally construe the filings of pro se litigants). On January 16, 2020, the Court received and filed a virtually identical motion by the petitioner requesting the very same relief. (Doc. 13.) In both motions, the petitioner requests reconsideration of the dismissal order because he did not receive timely notice of it by mail or otherwise.
We note that the Clerk has mistakenly docketed this motion as a motion for reconsideration of an order denying the appointment of counsel to represent the petitioner. The motion itself states clearly that it seeks vacatur of the Court's May 8, 2019, order dismissing the petition. It included copies of the Court's subsequent order denying his motion for appointment of counsel as moot to demonstrate that he had received more recent filings at his Robinson Avenue address.
The second motion is a photocopy of the first, but without exhibits and with the addition of a handwritten note asking that we mail correspondence to the petitioner at a third address.
The petitioner suggests that the Court lacked jurisdiction to dismiss the petition because it failed to deliver the dismissal order to his current mailing address, of which we had not yet been apprised. But "the burden is upon the petitioner to keep the court advised of his correct address." Tubbs v. Rosemeyer, Civ. A. No. 91-0855, 1992 WL 94888, at *1 (E.D. Pa. Apr. 21, 1992); see also Wallace v. Busch Entm't Corp., 2013 WL 356859, at *2 (S.D. Cal. Jan. 28, 2013) ("It is not the Court's duty to ensure that the paling address of an attorney or party is correct; that is the attorney's or party's responsibility."). Indeed, our local civil rules expressly provide:
Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action,
such party shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served upon such party. Service of any notices, copies of pleadings, motions or papers in the action at the address currently maintained on file in the clerk's office by a party shall be deemed to be effective service upon such party.L.R. 83.18. Here, the order of dismissal was mailed to the petitioner at the address he had maintained on file in the clerk's office, and thus he was effectively served with notice of the order, notwithstanding his non-receipt of it.
Regardless, Rule 60(b)(1) provides that "the court may relieve a party . . . from a final judgment, order, or proceeding for . . . excusable neglect." Fed. R. Civ. P. 60(b)(1). But we do not find excusable neglect in the circumstances presented here. The petitioner filed his petition on March 18, 2019, providing a Long Island mailing address. (Doc. 1.) The Court mailed out correspondence to the petitioner at that address the very next day, and an order the day after that. (Doc. 3; Doc. 4.) Both papers were returned by the postal service as undeliverable. (Doc. 5; Doc. 6.) The petitioner failed to provide the Court with an updated mailing address until December 2019, more than eight months later. (Doc. 9.) In the meantime, the petition had been dismissed in May 2019 (Doc. 7), and the petitioner failed to inquire about the status of his case until more than six months after it had been dismissed. See Williams v. Cambridge Integrated Servs. Grp., 235 Fed. App'x 870, 872 (3d Cir. 2007) (per curiam) (holding that a pro se party's "failure to update his address of record in the District Court, coupled with his [five-month] delay in failing to inquire about the status of his case in the District Court, did not constitute excusable neglect"); John v. Hogan, Civil No. 1:CV-06-2197, 2008 WL 520093, at *3 (M.D. Pa. Feb. 26, 2008) (finding that a pro se party "had an obligation to notify the court of his current address, and his failure to do so [over the course of a year] is not excusable neglect").
Moreover, we note that even if the petitioner had paid the requisite filing fee at the outset, this Court clearly lacks subject matter jurisdiction to consider his petition. For one thing, he is no longer "in custody" as his maximum sentence expired in November 2007. See Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam). For another, this is his fourth habeas petition challenging the same January 2007 conviction. See Aponte v. Zucick, No. 3:15-cv-01154, 2015 WL 6599758 (M.D. Pa. Oct. 29, 2015) (dismissing third petition as successive).
Accordingly, it is recommended that the plaintiff's motions for reconsideration (Doc. 12; Doc. 13) be DENIED.
In light of the ambiguity of the petitioner's most recent submission (Doc. 13), the Clerk shall mail a copy of this report and recommendation to the petitioner at both his address of record (259 Robinson Avenue, 2nd Floor, Bronx, NY 10465) and the second address written on that submission (455 E. 138th Street, #5G, Bronx, NY 10454). Dated: January 24, 2020
/s/_________
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 24, 2020. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: January 24, 2020
/s/_________
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge