Opinion
CIVIL ACTION NO. 17-2375
05-15-2018
ORDER
AND NOW, this 15th day of May, 2018, upon consideration of the Petition for Writ of Habeas Corpus filed by Petitioner Jack Mayer (Doc. No. 1), the Response thereto (Doc. No. 9), Magistrate Judge Timothy Rice's Report & Recommendation (Doc. No. 10), and Petitioner's Affidavit and Amended Objections to the Report & Recommendation (Doc. Nos. 11 and 17), it is hereby ORDERED that:
1. The Petitioner's Amended Objections (Doc. No. 17) are OVERRULED.
2. The Report & Recommendation (Doc. No. 10) is APPROVED and ADOPTED.
3. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED with prejudice without an evidentiary hearing.
4. There is no probable cause to issue a certificate of appealability.
5. The Clerk of Court shall mark this case CLOSED for all purposes, including statistics.
The Court agrees with Magistrate Judge Rice that Mr. Mayer's petition is untimely under 28 U.S.C. § 2244(d). See Report & Recommendation at 2. Further, the Court agrees that Mr. Mayer has not alleged facts sufficient to show that he is entitled to equitable tolling. See id. at 2-4. Finally, the Court agrees that the circumstances of this case do not fit the narrow exception of Martinez v. Ryan, 566 U.S. 1 (2012). See Report & Recommendation at 4.
A certificate of appealability may issue only upon "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner must "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); Lambert v. Blackwell, 387 F.3d 210, 230 (3d Cir. 2004). The Court agrees with Magistrate Judge Rice that there is no probable cause to issue such a certificate in this action. --------
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE