Opinion
Civil Action 21-cv-04564-JMG
12-06-2021
FAY SHORT, Petitioner, v. SUPERINTENDENT OF SCI CAMBRIDGE SPRINGS, et al., Respondents.
REPORT AND RECOMMENDATION
RICHARD A. LLORET, U.S. MAGISTRATE JUDGE
Before me is Fay Short's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Doc. No. 2. (Pet.) The petition was filed on October 14, 2021. Id. Ms. Short pled guilty to third-degree murder and conspiracy to commit murder on November 5, 2009. See Commonwealth v. Short, CP-51-CR-0010965-2009, Criminal Docket Sheet, Court of Common Pleas of Philadelphia County, p. 3 (Dkt.). On November 5, 2009, Ms. Short was sentenced to a term of imprisonment of fifteen to thirty years for murder, and a concurrent sentence of five to ten years for conspiracy. Id.
All references to the electronically docketed record will be cited as “Doc. No., at p. .” Page number citations for the petition will be to those in the top right corner of the printed petition form, as the page numbers inserted by the Clerk of Court at the time of filing were cut off when the document was electronically filed. The “memorandum of law” attached to the petition contains no page numbers at all, and will therefore be cited to by manually counting to the page, beginning with “page one” for the cover page of the memorandum, which bears the correct caption of “Fay Short [v.] Superintendent S.C.I. Cambridge Springs, [etc., ]” but contains the case number from state court, that is, CP-51-0010965-2009.
Third-degree murder is a violation of Pa. C.S. 18 § 2502.
Ms. Short raises two claims in her habeas petition: (1) “Defendant is not guilty, ” and (2) “Superior Court quashed appeal to deny appellant access to court.” Pet. at 5, 6. There is a hint of a claim of ineffective assistance of counsel which is not in any way developed. Id. I have not asked the Commonwealth for a response to these claims as the petition is untimely, as will be discussed below. I recommend that Ms. Fay's claims be dismissed with prejudice as untimely, and I further recommend that her petition be dismissed without a hearing and without the issuance of a certificate of appealability. Additionally, the claims are procedurally defaulted and non-cognizable on federal habeas review and may be dismissed on these alternative grounds as well.
FACTUAL AND PROCEDURAL HISTORY
Because Ms. Short never properly appealed, either directly or through the Post-Conviction Relief Act, there has been no statement of facts published in a decision by either the trial court or the Superior Court. Nor does her petition shed any light on the facts of the case. Her stated supporting facts for Ground One (“Defendant is not guilty”) consists of the statement: “she was kidnapped by police, and plea coerced. Plea not verified by court.” Pet. at 5. The “memorandum of law” attached to the petition contains no further discussion of this claim. Ground Two's supporting facts are: “Superior Court by Clerk of Superior Ct (sic) refused to deal with appellant because she had help. Courts are covering up police misconduct by denying access to court.”
An article published in the Philadelphia Inquirer on May 8, 2009 suggests that Ms. Short was involved in a “love triangle” and that she convinced one of her boyfriends to kill the other. See https://www.inquirer.com/philly/hp/news update/20090508 LETHAL LOVE TRIANGLE.html.
On August 28, 2009, Ms. Short was charged via information with murder and conspiracy to commit murder in Philadelphia County. Dkt. 4. Common Pleas Court Judge Benjamin Lerner took a negotiated guilty plea to the charges on November 5, 2009. Dkt. 5. On the same date, Judge Lerner deferred scheduling of sentencing pending a mental health evaluation. Id. On March 18, 2010, Ms. Short was sentenced. Id. Nothing was filed in the case between March 18, 2010 and November 14, 2014, when Ms. Short filed pro se motions to proceed in forma pauperis, and for production of transcripts and other related documents. Id. On April 22, 2015, an “inmate document request” appears, filed by the Court of Common Pleas of Philadelphia County. Dkt. 6.
The next action appearing on the docket was almost three years later, when Ms. Short filed motions for discovery and another motion to proceed in forma pauperis. Id. She filed a PCRA petition on January 3, 2019. Counsel was appointed to represent Ms. Short on March 14, 2019, and after defense counsel conducted an investigation (noted on the docket as “PCRA continued to further investigation by defense” on May 15, 2019) counsel filed a “Turner/Finley Letter” and a motion to withdraw on August 11, 2019, advising the court that there were no viable issues to raise in a PCRA petition. Dkt. 7. The PCRA court dismissed the petition as untimely on October 1, 2019, and granted a motion for attorney's fees on October 4, 2019. Id. Ms. Short appealed the dismissal to the Superior Court on October 26, 2019, and apparently filed a second notice of appeal on December 17, 2019. Id.
Gina Amoriello, Esq. entered her appearance as appointed counsel on March 14, 2019.
Such letters are filed pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania v. Finley, 481 U.S. 55 (1987), wherein defense counsel discuss all possible issues for appeal and describe why the issues are not viable. They are accompanied by a motion to withdraw the representation.
The Docket Sheet shows that the appeal was taken by Ms. Short herself, and not by her former counsel, Ms. Amoriello. Id.
On January 28 and 29, 2020, the Superior Court made the following docket entries on the Superior Court's docket:
01/28/2020 Docket Entry: NOTICE OF APPEAL IFP DOCKETED COMMENT, Commonwealth of Pennsylvania v. Fay Short Appellant, 367 EDA 2020.
01/29/2020 Docket Entry: ORDER - Rule to Show cause comment: Upon review of the trial court docket and the notice of appeal filed on October 26, 2019, it was discovered the notice of appeal was filed by "Mark Marvin" on behalf of Appellant. There is no indication on the trial court docket that Mark Marvin is a licensed attorney in the Commonwealth of Pennsylvania and is therefore
prohibited from representing Appellant in this matter. See Commonwealth v. Carroll, 517 A.2d 980, 982 (Pa. Super. 1986) (a non-lawyer cannot represent another person in court), appeal denied, 527 A.2d 535 (Pa. 1987). Appellant is directed to show cause, within ten days of the date that this order is filed, why this appeal should not be quashed as Mark Marvin is prohibited from representing Appellant in this matter. Furthermore, in light of the fact that the notice of appeal fails to state the date of the order being appealed, Appellant is directed to show cause, within ten days of the date that this order is filed, why this appeal should not be quashed as having been taken from a purported order which is not entered upon the appropriate docket of the lower court. See Pa.R.A.P. 301(A)(1). Failure to respond to this directive may result in quashal/dismissal of this appeal without further notice. Commonwealth of Pennsylvania v. Fay Short Appellant, 367 EDA 2020.
The appeal was dismissed for failure to comply with Pa. R.A.P. 3517 on June 10, 2020. Dkt. 8. One week later, a second dismissal of the appeal was entered for failure to file briefs. Id. Sixteen months later, on October 14, 2021, Ms. Short filed her habeas petition in this court. The petition itself is handwritten, however, attached to it is a typed “memorandum of law, ” a mostly incomprehensible string of paragraphs and citations discussing prisoners of war and their ability to utilize the services of “jailhouse lawyers, ” which, like her PCRA petition, appears to have been prepared by Mark Marvin, of Walden, New York.
This is not my first encounter with Mr. Marvin. In the pending matter of Rorrer v. Nicholas, No. 19-1398 (E.D. Pa. April 2, 2019), assigned to me for a report and recommendation by Judge Gene E. K. Pratter, Mr. Marvin tried to intervene on behalf of the petitioner by way of “amicus” filing. When I denied the motion, based on the fact that I had already appointed counsel for Ms. Rorrer, he moved for reconsideration and requested my recusal, which I also denied. Like Ms. Short here, Ms. Rorrer was convicted of murdering a one-time romantic partner. A Google search for Mr. Marvin at that time revealed that he has made other attempts to intervene or otherwise take part in several other proceedings involving women convicted of homicide. These include: (1) Mr. Marvin attempting to collect the remains of a woman he claimed to be his “common-law wife” who died in prison in Texas while serving a life sentence for her part in a Pittsburgh, Pennsylvania bank robbery in which a man was forcibly placed in a “collar bomb;” See https://pittsburgh.cbslocal.com/2017/08/22/husband-seeks-remains-convicted-collar-bomb-murderer/. (Ms. Diehl-Armstrong, the presumed “common-law wife” of Mr. Marvin, murdered her former boyfriend, Jim Roden, when he threatened to expose her plot to rob the bank using a collar-bomb. See United States v. Diehl-Armstrong, 504 Fed.Appx. 152, 153-54 (3d Cir. 2012) (“Roden, however, objected to the plan and threatened to notify police. To prevent this, in August 2003, Diehl- Armstrong shot and killed Roden in the home they shared. She enlisted [a friend] to assist in hiding Roden's body by placing it in a freezer at [the friend's] house.”); (2) Mr. Marvin attempting to intervene to represent Deneshya Poole in a Lycoming County, Pennsylvania prosecution of Ms. Poole. As in this matter, the Pennsylvania appellate court dismissed his appeal as it appeared Mr. Marvin was not licensed to practice law in Pennsylvania. Although it appears the prosecution where Mr. Marvin attempted to intervene was for an event arising during Ms. Poole's incarceration, she was originally convicted of assaulting and murdering her three-month old child, after multiple violent events involving the baby's father. See Commonwealth v. Deneysha Poole, No. 1398 MDA 2013, 2014 WL 10917060 (Pa. Super. Jun. 2, 2014); and Commonwealth v. Deneysha Poole, No. CR-1-2016, 1718 MDA 2016 (C.C.P. Lycoming Cty. Nov. 23, 2016); (3) Justicia Law reports that Mr. Marvin attempted to file a habeas petition in New York state court on behalf of Angelika Graswald, a/k/a Angelika Lipska. The writ was dismissed. See https://law.justia.com/cases/new-york/appellate-division-second-department/2018/2017-11614.html. (Ms. Graswald and Vincent Viafiore were kayaking in separate kayaks in the Hudson River on or about April 19, 2015. The waters were rough when the decedent and Graswald left an island where they went hiking at about 7:00 p.m. “The decedent's kayak's paddle was missing a locking clip and had no drain plug, as it was removed by Graswald. While crossing the Hudson, the decedent's kayak began to take on water and it began to sink. The decedent exited his kayak and entered the river [which was about 40 degrees]. Ultimately, the decedent drowned in the river. Graswald was arrested and charged with Second Degree Murder and Second-Degree Manslaughter. On June 24, 2017, the case against Graswald was resolved by her plea to Criminally Negligent Homicide, a class E felony under Penal Law § 125.10.” Matter of Rice, 58 Misc.3d 1210(A), 95 N.Y.S.3d 126 (N.Y. Sur. 2018) (involving the resolution of the decedent's estate)). In none of these cases is any link to Mr. Marvin apparent, but all involve women convicted of homicide of either a current or former romantic partner or a child resulting from such relationship.
This matter was referred to me on November 29, 2021. See Doc. No. 5. Because the petition is many years late, I have not requested a responsive pleading from the Commonwealth.
DISCUSSION
Ms. Short's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2241 et seq. The AEDPA imposes a one-year limitation period on the filing of habeas petitions:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
A.Ms. Short's petition is untimely.
The habeas clock generally begins ticking when a petitioner's judgment becomes final. See 28 U.S.C. § 2244(d)(1). Here, Ms. Short's judgment became final on April 17, 2010, thirty days after March 18, 2010, the date upon which Judge Lerner sentenced Ms. Short to a term of imprisonment. Because she did not file a direct appeal within that thirty days, her time to file a federal habeas petition began to run on that date. Accordingly, Ms. Short had 365 days from that date-until April 16, 2011-to file a habeas petition unless her petition was subject to statutory or equitable tolling.
1. Statutory tolling does not save Ms. Short's petition.
The one-year AEDPA statute of limitations is tolled during the time a petitioner has a properly filed PCRA petition pending in the state courts. See 28 U.S.C. § 2244(d)(2) (providing that the time during which a “properly filed” petition for collateral relief is pending is not counted toward the one-year statute of limitations). An untimely PCRA petition, however, will not toll the running of the AEDPA clock. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (“In common understanding, a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more ‘properly filed' than a petition filed after a time limit that permits no exception. The purpose of AEDPA's statute of limitations confirms this commonsense reading.”)
Therefore, the filing of Ms. Short's 2019 PCRA petition in no way “restarted” the clock for AEDPA purposes. The Supreme Court explicitly rejected such an interpretation in Pace, “On petitioner's theory, a state prisoner could toll the statute of limitations at will simply by filing untimely state postconviction petitions. This would turn § 2244(d)(2) into a de facto extension mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive delay.” Id. Because Ms. Short did not file a timely direct appeal or PCRA before April 16, 2011, her one-year window expired ten years, five months and 28 days before she actually filed her petition. See https://www.timeanddate.com/date/durationresult.html.
I find that Ms. Short's time to file a habeas petition expired over ten years ago, on April 16, 2011, and she did not file a habeas petition on or before that date. Ms. Short's habeas petition should be dismissed unless she is entitled to equitable tolling.
2. Ms. Short is not entitled to equitable tolling.
The Supreme Court of the United States has held that the federal habeas statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 648-49 (2010). Equitable tolling is allowed only if a petitioner shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The diligence required for equitable tolling purposes is ‘reasonable diligence[, ]' but “the circumstances of a case must be ‘extraordinary' before equitable tolling can be applied.” Id. at 652, 653. There are “no bright lines in determining whether equitable tolling is warranted in a given case.” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). Rather, equitable tolling is appropriate when “principles of equity would make [the] rigid application [of a limitation period] unfair.” Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (alterations in original) (quoting Shendock v. Dir., Office of Workers' Comp. Programs, 893 F.2d 1458 (3d Cir. 1990); see also Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012).
The Third Circuit Court of Appeals has found equitable tolling to be appropriate when: (1) the state has actively misled the petitioner; (2) the petitioner has in some extraordinary way been prevented from asserting his rights; or (3) the petitioner has timely asserted his rights but in a wrong forum. Urcinoli v. Cathel, 546 F.3d 269, 272 (3d Cir. 2008); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). The Third Circuit has emphasized that equitable tolling should be applied sparingly. See Lacava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005); Schlueter v. Varner, 384 F.3d 69, 75-76 (3d Cir. 2004).
Here, Ms. Short is unable to demonstrate due diligence or extraordinary circumstances, and equitable tolling is not warranted. The argument in support of her failure to timely file a PCRA in state court that is discussed in the memorandum of law is a suggestion that the Superior Court improperly denied her the assistance of Mr. Marvin, a non-attorney. No. mention is made, however, of why nothing was filed between March 18, 2010 and November 14, 2014, the date upon which Ms. Short apparently filed a PCRA petition, and was appointed counsel. That attorney (not Mr. Marvin) found no valid grounds for relief and moved to withdraw. Here, Ms. Short has no explanation why almost four years passed before she filed her first PCRA petition in state court. Ms. Short's inaction means that she was not diligent in pursuing her rights. See Pace, 544 U.S. at 419 (citations omitted) (concluding that because petitioner “sat” on his rights “for five . . . months after his PCRA proceedings became final before deciding to seek relief in federal court . . . petitioner's lack of diligence preclude[d] equity's operation.”). Therefore, equitable tolling is not warranted.
Even if Ms. Short could demonstrate diligence, she has not alleged an extraordinary circumstance that prevented her from filing on time. See Id. at 418. Under Third Circuit precedent, the existence of extraordinary circumstances is a subjective inquiry that focuses on “how severe an obstacle [the circumstance] is for the prisoner endeavoring to comply with AEDPA's limitations period.” Ross v. Varano, 712 F.3d 784, 802-03 (3d Cir. 2013) (quoting Pabon v. Mahanoy, 654 F.3d 395, 400 (3d Cir. 2011)) (emphasis in original). Ms. Short does not cite any obstacles that impeded her ability to timely file the habeas petition, much less any extraordinary obstacles that stood in her way. Therefore, I find that Ms. Short is not entitled to equitable tolling, and recommend that her habeas petition be dismissed as untimely.
Ms. Short's petition suggests that she was “kidnapped” when she was originally arrested by police and that her guilty plea was “coerced, ” but she makes no allegations about why she was unable to do anything with respect to her case for four years after she was sentenced. Pet at 5, 6. As discussed below, even if Ms. Short had alleged a nexus between her claims of kidnapping and coercion and her untimely filing sufficient to justify equitable tolling, her claims are nevertheless procedurally defaulted and/or not cognizable on habeas review and should be dismissed.
B. Ms. Short's claims are procedurally defaulted and not cognizable on habeas review.
Even if Ms. Short's habeas petition was timely, both of her claims are procedurally defaulted or not cognizable on habeas review. Under the AEDPA, a prerequisite to the issuance of a writ of habeas corpus on behalf of a person in state custody pursuant to a state court judgment is that the petitioner must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To satisfy this requirement, a petitioner must have “fairly presented” the merits of his federal claims during “one complete round of the established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A federal claim is fairly presented to the state courts where the petitioner has raised “the same factual and legal basis for the claim to the state courts.” See Nara v. Frank, 488 F.3d 188, 198-99 (3d Cir. 2007).
Where a petitioner has procedurally defaulted on his claims, his avenues of relief are constricted. He may show either “cause” for the procedural default and “actual prejudice” as a result of the supposed violation of federal law, or “demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice.” See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citation omitted). Demonstrating cause requires that an objective factor external to the defense impeded a petitioner's ability to raise his claims in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986). Should a petitioner fail to establish the “cause” prong, a court need not move to the prejudice prong before denying the claim. Smith v. Murray, 477 U.S. 527, 533 (1986). A petitioner may establish a fundamental miscarriage of justice if an “actual innocence” claim is asserted. See Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004).
Ms. Short's two claims are procedurally defaulted because they were never raised in the state courts. Ms. Short gives no explanation other than, arguably, a statement on Page 4 of her petition, in discussing whether or not she raised a direct appeal, that, “[a]ppeal was filed prematurely because of DOC mail delays and PA Bill of Attainder declaring her permanently guilty.” Nothing on the docket suggests that she made any attempt to file a direct appeal, thereby negating this attempt to explain away why she never raised her claims in state court.
Finally, Ms. Short's two claims, that she is “not guilty, ” and that the Superior Court's quashal of her (hopelessly late) PCRA petition was a “denial of access” to the court are non-cognizable on federal habeas review.
Ms. Short's first claim, which I construe liberally, is that she is actually innocent of the offense for which she was charged. A claim of “actual innocence” may work to overcome an otherwise procedurally defaulted claim. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995) (“Schlup may obtain review of his constitutional claims only if he falls within the narrow class of cases ... implicating a fundamental miscarriage of justice,' (internal citation omitted). Schlup's claim of innocence is offered only to bring him within this ‘narrow class of cases.'”). “Actual innocence means ‘factual innocence, not mere legal insufficiency.' The Supreme Court has required a petitioner ‘to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Sweger v. Chesney, 294 F.3d 506, 522-23 (3d Cir.2002) (internal citations omitted). Pickard v. United States, 312 F.Supp.2d 735, 741 (D.V.I. 2004), aff'd, 170 Fed.Appx. 243 (3d Cir. 2006) (emphasis in original). Such claims are hard to support and therefore rarely successful. Id.
Pro se habeas petitions are construed liberally by federal courts. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“As the Court unanimously held in Haines v. Kerner, 404 U.S. 519 (1972), a pro se complaint, ‘however inartfully pleaded,' must be held to ‘less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Id., at 520-521 (internal quotation omitted)).
Here, Ms. Short offers no new evidence, reliable or not, in support of her claim of actual innocence. Even if she had such evidence, however, a claim of actual innocence would work only to allow Ms. Short to overcome her failure to raise some viable Constitutional claim of error at her change of plea. Stated differently, a claim of actual innocence is not, on its own, a cognizable claim on federal habeas review. “The habeas statute ‘unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam), quoting Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam). Ms. Short thus would have had to tie her claim of “actual innocence” to a violation of some Constitutional right, such as the effective assistance of counsel. See, e.g. McQuiggan v. Perkins, 569 U.S. 383 (2013). At least as to the first claim, she does not do so.
Ms. Short's second claim, read liberally, is a claim that she was denied access to the state appellate court when filing her PCRA. While unclear as to the reason this is so (she states that the Superior Court “refused” to accept her appeal “because she had help”-that is, the aforementioned Mr. Marvin), such a claim does not invoke a violation of the Constitution, and is again, non-cognizable on federal habeas review. Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“[T]he federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation.”).
At best, Ms. Short could make out a claim that the Superior Court refused to hear her PCRA because she was “represented” by someone not licensed to practice law in Pennsylvania. See Superior Court docket entry of January 29, 2020, cited supra at p. 3. Such a procedural rule, appropriately passed and regularly followed by all courts in the Commonwealth of Pennsylvania, is “firmly established and regularly followed.” Wilson v. Beard, 589 F.3d 651, 658 (3d Cir. 2009). As such, it is an “independent and adequate state law ground” for the dismissal of the PCRA, and unreviewable under the AEDPA. “A federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011), quoting Beard v. Kindler, 558 U.S. 53, 55 (2009). See also Engle v. Isaac, 456 U.S. 107, 129 (1982).
In summary, Ms. Short's petition for habeas review should be dismissed as untimely, and in the alternative as procedurally defaulted and non-cognizable. I respectfully recommend that it be dismissed in its entirety, without a hearing or certificate of appealability.
RECOMMENDATION
Based upon the discussion above, I respectfully recommend that Ms. Short's petition be dismissed with prejudice. I recommend that no certificate of appealability issue because “the applicant has [not] made a substantial showing of the denial of a constitutional right[, ]” under 28 U.S.C. § 2253(c)(2), since she has not demonstrated that “reasonable jurists” would find my “assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see United States v. Cepero, 224 F.3d 256, 262-63 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012).
Parties may object to this report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with the report and recommendation. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and explain the basis for the objections. A party wishing to respond to objections shall file a response within 14 days of the date the objections are served.