Opinion
CIVIL NO. 1:10-CV-1237.
September 2, 2011
ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
We are considering a Report and Recommendation by Magistrate Judge Mannion, wherein he recommends that we dismiss petitioner Louis James Rocco's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as untimely. Since objections were filed, the Court must "make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(c).
In a thorough report, Judge Mannion concluded that Rocco was time barred from filing a § 2254 petition. We agree. However, petitioner claims he is entitled to equitable tolling of the one-year statute of limitations because of his attorney's failure to timely file an appeal of petitioner's PCRA denial. Rocco is entitled to equitable tolling if he diligently pursued his rights and extraordinary circumstances prevented timely filing. Cramer v. Sec'y Pa. Dept. Of Corrections, No. 07-2782, 2011 WL 1505367, at *2 (3d Cir. 2011). However, petitioner's unsupported claim that his attorney failed to timely file an appeal does not constitute "extraordinary circumstance." See Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001) ("In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the "extraordinary" circumstances required for equitable tolling.)
ACCORDINGLY, this 1st day of September, 2011, it is ordered that upon consideration of the report and recommendation of the magistrate judge (Doc. 22), filed June 6, 2011, to which objections were filed, and upon independent review of the record, it is ordered that:
1. The magistrate judge's report is adopted.
2. Petitioner's objections (Doc. 24) are overruled.
3. Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is dismissed as untimely.
4. A certificate of appealability is denied.
5. The Clerk of Court shall close this file.