Fitzgerald v. Attorney Gen. of the Commonwealth of Pennsylvania

Full title: KENYA FITZGERALD, Petitioner, v. ATTORNEY GENERAL OF THE COMMONWEALTH OF…

Court: UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date published: Mar 23, 2012

2:11cv515 (W.D. Pa. Mar. 23, 2012)

Opinion

2:11cv515

03-23-2012

KENYA FITZGERALD, Petitioner, v. ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, et al, Respondents.

David Stewart Cercone

Electronic Filing

District Judge David S. Cereone

Chief Magistrate Judge Lisa Pupo Lenihan

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)(1), 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.

AND NOW, this 21 day of March, 2012,

IT IS HEREBY ORDERED that Respondents' Motion to Dismiss (ECF No. 10) 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)(1) 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 CM/ECF Electronic Mail)