Opinion
Civil Action No. 16-287
02-14-2018
RICHARD DANIEL OTERO, Petitioner, v. JAY LANE, et al., Respondent.
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
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]" 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.
/s/_________
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE