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noting that "[t]he Supreme Court does not state in Martinez that a blanket allegation of ineffectiveness of PCRA counsel can constitute a basis for equitable tolling of the habeas statute of limitations. The Martinez decision did not allow for equitable tolling of the AEDPA deadlines."
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CIVIL ACTION NO. 12-1123
02-12-2013
GREGORY SAUNDERS, Petitioner, v. MARIROSA LAMAS, et al., Respondents.
Henry S. Perkin, M.J. REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Gregory Saunders ("Petitioner"), pursuant to 28 U.S.C. section 2254. Petitioner is currently incarcerated in the State Correctional Institution in Bellefonte, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing. I. PROCEDURAL HISTORY.
This information is taken from the Petition for Writ of Habeas Corpus and the Response to the Petition and the Appendix to the Response which comprise the state court record in this case. The state court record was ordered on April 20, 2012. In August, 2012, the Clerk's Office was informed that the state court record was unavailable as it was then in the state PCRA unit. In January, 2013, Respondents filed a supplemental appendix of documents regarding Petitioner's second PCRA petition and his appeal from the PCRA court's denial of his second petition. Because this Court finds that all of the exhibits submitted both by Petitioner and Respondents fully document the factual basis of the Petition, we find it unnecessary to wait for receipt of the official state court record before issuing this Report and Recommendation.
On April 2, 2003, a criminal Complaint was filed charging Petitioner and his co-defendants Kevin Brown and Steven Powell, with the crimes of Criminal Conspiracy, Burglary, Robbery, Firearms Not to Be Carried Without a License, and related offenses. See Resp., Ex. A, p. 2. Petitioner filed an Omnibus Pre-Trial Motion on April 12, 2004. Id. at 11. The trial court held a hearing on May 7, 2004, and denied the motion on May 17, 2004. Id. at 11-12. A jury trial commenced on August 17, 2004, and on August 20, 2004, the jury found the Petitioner guilty of Robbery, Burglary, Firearms Not to Be Carried Without a License, and Criminal Conspiracy. Id. at 3, 17, 19. On November 23, 2004, Petitioner was sentenced to an aggregate period of incarceration of 19 to 38 years. Id. at 3, 20-21.
18 Pa.C.S.A. § 903(a)(1).
18 Pa.C.S.A. § 3502(a).
18 Pa.C.S.A. § 3701(a)(2).
18 Pa.C.S.A. § 6106(a)(1).
The Honorable Ann Osborne, the trial judge, related the factual background of this case in her opinion following denial of Petitioner's second PCRA petition, as follows:
Briefly, on April 2, 2003 Petitioner and two accomplices committed a home invasion armed robbery at approximately 2 p.m. in the City of Chester, Delaware County. All three men were arrested immediately after the robbery when they fled the scene and were pursued by police officers responding to the victims' 911 call.
On December 21, 2004, Petitioner timely filed a pro se Notice of Appeal in the Pennsylvania Superior Court, raising seven trial court error claims in his Concise Statement of Matters Complained of on Appeal ("1925(b) statement"), including: (1) failing to suppress evidence obtained from an illegal stop and defective search warrant; (2) denying Petitioner's motion to sever his trial from his co-defendants; (3) failing to dismiss the matter based on a violation of Pa. R. Crim. P. 600; (4) allowing a Commonwealth witness to identify Petitioner; (5) allowing presentation of evidence relating to drugs; (6) allowing the jury to render a verdict on the firearms charge; and (7) sentencing Petitioner to consecutive sentences in the aggravated range of the Sentencing Guidelines. See Resp., Ex. B, p. 1; Ex. D. On December 30, 2005, the trial court issued an opinion stating that the judgment of sentence should be affirmed. Resp., Ex. E. On April 17, 2005, Petitioner's appointed counsel filed his appellate brief. Resp., Ex. B at 3; Ex. D. On December 13, 2006, the Superior Court affirmed the judgment of sentence, finding that petitioner had waived all issues on appeal because of the late-filed 1925(b) statement. On October 26, 2007, petitioner filed an Application for Reconsideration which was granted on December 6, 2007. On December 6, 2007, the Superior Court granted petitioner's application for reconsideration nunc pro tunc and withdrew its December 13, 2006 decision affirming the judgment of sentence. See Resp., Ex. A at 23; Ex. B at 3. Also on December 6, 2007, petitioner filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"). See 42 Pa. C.S.A. § 9541, et seq. The court dismissed the PCRA petition as premature on January 28, 2008, because the Superior Court had not rendered a decision on petitioner's direct appeal from his sentence. See Resp., Ex. A at 23; Ex. B at 4. On June 20, 2008, the Superior Court affirmed the judgment of sentence. Resp., Ex. B at 4. Petitioner did not file a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, therefore his judgment of sentence became final on July 20, 2008, when the time for filing a petition with the Pennsylvania Supreme Court expired. See Pa. R. App. P. 1113.
Petitioner timely filed a pro se PCRA petition on September 9, 2009, asserting the following claims: (1) trial counsel rendered ineffective assistance of counsel in not requiring a grand jury indictment; and (2) trial counsel rendered ineffective assistance of counsel for failing to object to the prosecutor's closing argument. Resp., Ex. A at 24; Ex. F at 6. The PCRA court appointed counsel to represent petitioner and on March 9, 2009, counsel filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), together with an Application to Withdraw. Resp., Ex. A at 25; Ex. F. The PCRA court issued a Notice of Intent to Dismiss the PCRA petition without a hearing on March 12, 2009, and petitioner did not object or otherwise respond to the court's Notice of Intent to Dismiss. Resp., Ex. G. The PCRA court dismissed the PCRA petition without a hearing on June 17, 2009. Resp., Ex. H. On July 6, 2009, the Pennsylvania Superior Court received Petitioner's notice of appeal which was signed and dated June 29, 2009. Resp., Ex. I. On March 17, 2010, the Superior Court dismissed the appeal for failure to file a brief. Resp., Ex. J.
On February 27, 2012, Petitioner signed the instant pro se federal Petition for Writ of Habeas Corpus containing two claims: (1) evidence was insufficient to sustain his conviction, violating Petitioner's due process rights because the alleged victim did not identify Petitioner as one of the burglars and Petitioner was arrested in a vehicle later after the incident; and (2) the trial court's failure to give a biased witness instruction denied Petitioner due process because a state witness admitted to pending charges but no instruction was given to the jury to consider this evidence. Pet., p. 9. The Petition was docketed by the Clerk of Court on March 1, 2012. See Dkt. No. 1. Pursuant to the prison mailbox rule, this Court will consider the date of filing as February 27, 2012. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1997) (motion is deemed timely filed on date petitioner gave petition to prison officials to mail). On March 20, 2012, the United States Supreme Court issued its opinion in Martinez v. Ryan, 1325 S.Ct. 1309 (2012). Petitioner filed a "Petition Requesting to Stay in Abeyance the Instant Writ of Habeas Corpus" in this Court on April 9, 2012, stating that he "is filing a state petition to give the state a chance to address PCRA counsel's ineffectiveness" based on Martinez and seeking a stay of the instant Petition in this Court. See Pet. Requesting Stay (Dkt. No. 3) at 1. Respondents filed both their Response to the instant Habeas Petition and their Response to the Motion to Stay on May 24, 2012. See Dkt. Nos. 11, 12. Respondents contend that the Martinez case has no bearing on the instant Petition and the Petition should not be stayed. They also contend that the Petition is time-barred, and should be dismissed with prejudice and without an evidentiary hearing.
On May 17, 2012, petitioner filed a pro se PCRA petition in state court. Resp., Ex. K. The PCRA court filed its Notice of Intent to Dismiss the petition on June 6, 2012. Supplemental App., Ex. L. The petitioner filed a Response to the Notice of Intent to Dismiss on June 29, 2012. On July 5, 2012, the PCRA court dismissed the PCRA petition without a hearing. Supplemental App., Ex. M. Petitioner appealed to the Pennsylvania Superior Court on July 21, 2012. Id., Ex. N. The PCRA court issued its 1925(b) opinion for the benefit of the Superior Court on October 3, 2012. Id., Ex. P. The petitioner signed his appellate brief on November 20, 2012, and it was filed on November 21, 2012. Id., Ex. O at 3; Ex. Q. The Commonwealth filed its response brief on December 4, 2012, and petitioner signed a reply brief on December 17, 2012. Supplemental App., Exs. R, S.
Petitioner signed the PCRA petition on May 17, 2012 and it was received by the PCRA court on May 21, 2012. Resp., Ex. K. The petition contains two claims: (1) PCRA counsel was ineffective for failing to raise direct appeal counsel's ineffectiveness in not challenging the sufficiency of the evidence on appeal, denying petitioner his Sixth Amendment right to effective counsel; and (2) PCRA counsel was ineffective for failing to raise trial counsel's ineffectiveness in not objecting to the omission of a biased witness instruction, denying Petitioner his Sixth Amendment right to effective counsel and his Fourteenth Amendment right to due process. Id.
Having reviewed the documents of record in this case, as well as the state court record, we offer this Report and Recommendation. II. DISCUSSION.
A. Petition Requesting A Stay.
Petitioner seeks a stay of the Petition pending the outcome of a PCRA petition which he filed "to give the state a chance to address PCRA counsel's ineffectiveness" pursuant to the United States Supreme Court decision in Martinez v. Ryan, _— U.S. —, 132 S.Ct. 1309 (2012). See Dkt. No. 3; Pet. Requesting Stay, p. 1. In his Petition for Writ of Habeas Corpus, Petitioner raises claims regarding the sufficiency of the evidence and the jury charge at his trial. Martinez concerned ineffective assistance of counsel claims raised in initial-review proceedings in state courts which require such claims to await collateral review, as opposed to direct review. Because neither claim is an initial-review claim described in Martinez, Respondents contend that Martinez is inapplicable to Petitioner and thus his motion to stay should be denied.
Petitioner asserts that Martinez entitles him to a finding of timeliness. Following Martinez, an error by a prisoner's post-conviction counsel during his initial state collateral review proceeding can qualify as "cause" to excuse the procedural default of a claim of trial counsel ineffectiveness claim if: (1) state law required the prisoner to wait until post-conviction review to raise Strickland claims; (2) the prisoner's underlying Strickland claim is "substantial;" and (3) the prisoner can establish that his post-conviction counsel was ineffective under the Strickland standard. See Martinez, 132 S.Ct. at 1315, 1318-1319.
Respondents contend that Petitioner is ineligible for a recalculation of the AEDPA deadline pursuant to Section 2244(d)(1)(C) for several reasons. First, Martinez did not announce a new federal constitutional rule of law and says nothing about retroactivity. Id. at 1315 (expressly declining to decide constitutional questions). See also Adams v. Thaler, --- F.3d --- , 2012 WL 1415094 at *10 n.6 (5th Cir. Apr. 25, 2012) (rejecting similar new rule contention: "Martinez does not provide a basis for authorization under § 2244(b)(2)(A), as the Court's decision was an 'equitable ruling' that did not establish 'a new rule of constitutional law.'") (citing Martinez, 132 S.Ct. at 1319). Accord, e.g., Gabe v. United States, Nos. 412-cv145 & 405-cr-281, 2012 WL 2153946, at *1 (S.D. Ga. June 13, 2012) (same). Respondents correctly note that the Supreme Court in Martinez did not address or otherwise allow for the review of untimely claims. Id. at 1315; see also Capers v. Walsh, CIV.A. No. 12-4780, 2012 WL 5389513, at *4 (E.D. Pa. Oct. 5, 2012)(Rice, M.J.), report and recommendation adopted and approved by, 2012 WL 5395797 (E.D. Pa. Nov. 5, 2012)(Joyner, C.D.J.)(citing Stromberg v. Varano, No. 09-401, 2012 WL 2849266, at *5 n.37 (E.D. Pa. July 11, 2012)(Martinez exception does not alleviate petitioner's burden to overcome AEDPA statute of limitations); Perez v. Williams, No. 12-605, 2012 WL 2389669, at *2 n.1 (D. Nev. June 25, 2012)("Nothing in the Martinez decision has any bearing on the present timeliness inquiry."); Arthur v. Thomas, No. 01-983, 2012 WL 2357919, at *8-*10 ("Martinez did not excuse petitioner's failure to comply with AEDPA's limitations period. . . ."); Yow v. Thaler, No. 10-0005, 2012 WL 2795850, at *2 (N.D. Tex. June 20, 2012)("[T]he Martinez case is inapplicable to Petitioner's statute of limitations issues."). Thus, Martinez does not render Petitioner's habeas petition timely pursuant to 28 U.S.C. § 2244(d)(1)(C)(claims alleged in Petition do not rely on new rule of federal constitutional law of retroactive application) or 28 U.S.C. § 2244(d)(1)(D)(Petitioner has not shown that factual predicate of claims was not discoverable through exercise of due diligence long ago). Because Martinez did not purport to describe a constitutional right, let alone make it retroactively applicable, the alternate start date under Section 2244(d)(1(C) cannot apply to render the petition timely filed.
Second, Petitioner asserts that Martinez "directly [a]ffects [P]etitioner's claims" but does not explain how this is so, when he presented all of his federal claims himself proceeding pro se and those claims were adjudicated on the merits on PCRA appeal. Pet. at 17. Thus, it is unclear which of Petitioner's claims, i.e., the sufficiency of the evidence or the jury charge, could be affected by the limited procedural default ruling set forth in Martinez for ineffective assistance of PCRA counsel (i.e., Petitioner himself). In Petitioner's case, default is not at issue, much less why Martinez provides an alternative start date for the statutory limitations period as to any of his claims. Neither of Petitioner's claims is an initial-review claim described in Martinez. Accordingly, Martinez is inapposite to Petitioner's request for a stay and it is respectfully recommended that the Motion for Stay should be denied.
The PCRA court opined that Martinez provided petitioner with no relief from the jurisdictional time-bar imposed by the PCRA, and that the petition was time-barred. Supplemental App., Ex. R at 5.
B. Whether the Federal Habeas Corpus Petition at Issue is Statutorily Time-Barred.
Pursuant to section 104(2) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996 and amended 42 U.S.C. section 2254, the statute under which the instant Petition for Writ of Habeas Corpus was filed, federal courts are required to give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C. section 2244, to require that a strict one-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. However, if direct review of a criminal conviction ended prior to the AEDPA's effective date, a prisoner has one year subsequent to the April 24, 1996 effective date to properly file a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). In this case, the applicable starting point to examine the limitation period is the latest date on which the judgment of sentence became final, either by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1).
Pub.L. 104-132, 110 Stat. 1214.
28 U.S.C. section 2244 requires that:
(d)(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 -
28 U.S.C. § 2244(d)(1). --------(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.
Petitioner's judgment of sentence became final on July 20, 2008, thirty days after the Pennsylvania Superior Court affirmed the judgment of sentence, and the time for filing a petition for allowance of appeal with the Pennsylvania Supreme Court expired. See 28 U.S.C. § 2244(d)(1)(A); Pa. R. App. P. 1113; 42 Pa. C.S.A. § 9545(b)(3).. Accordingly, the one-year time limit for Petitioner to timely file a federal Petition for Writ of Habeas Corpus began on July 21, 2008 and expired on July 21, 2009. In the absence of any statutory or equitable tolling, Petitioner, therefore, would have been required to file his federal habeas petition on or before July 21, 2009. Because the AEDPA's one-year statute of limitations is subject to both statutory and equitable tolling, we must examine whether the instant Petition may be considered timely filed under either concept. 28 U.S.C. § 2244(d)(enumerating statutory tolling provisions); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.), cert. denied, 540 U.S. 921 (2003) (holding AEDPA's time limit is subject to the doctrine of equitable tolling, a judicially crafted exception).
B. The Federal Habeas Corpus Petition at Issue is Not Eligible for Statutory or Equitable Tolling.
The AEDPA's one-year statute of limitations is subject to both statutory and equitable tolling. 28 U.S.C. § 2244(d)(enumerating statutory tolling provisions); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.), cert. denied, 540 U.S. 921 (2003) (holding AEDPA's time limit is subject to the doctrine of equitable tolling, a judicially crafted exception).
1. Statutory Tolling.
Petitioner is not entitled to a new, extended deadline for the AEDPA's limitation period pursuant to 28 U.S.C. § 2244(d)(1). First, Petitioner does not allege nor is there evidence to demonstrate that state action prevented the timely filing of his habeas action. 28 U.S.C. § 2244(d)(1)(B). Second, the claims alleged in the Petition do not rely on a new rule of federal constitutional law of retroactive application. 28 U.S.C. § 2244(d)(1)©. Finally, Petitioner has not made a showing that the factual predicate of his claims was not discoverable through the exercise of due diligence long ago. 28 U.S.C. § 2244(d)(1)(D).
With respect to Petitioner's PCRA filing, we note that the limitations period will be statutorily tolled for the time during which a "properly filed" application for state post- conviction or other collateral review is pending. See 28 U.S.C. § 2244(d)(2). However, if a PCRA petition is not timely filed, it is not considered properly filed in order to toll the AEDPA one-year statutory time period. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
Petitioner's first pro se PCRA petition was filed on September 9, 2009, after the expiration of the one-year habeas clock, therefore statutory tolling is inapplicable. Pace v. Guglielmo, 125 S.Ct. 1807, 1814 (2005)("we hold that time limits, no matter their form, are 'filing conditions,' and so the pendency of the untimely PCRA is not a basis for statutory tolling.") The present Petition was filed on February 27, 2012, two years and five months beyond the AEDPA deadline. It is statutorily time-barred.
2. Equitable Tolling
We must next examine whether the AEDPA statute of limitations should be equitably tolled to consider the Petition timely filed. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 540 U.S. 826 (2003)(citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998)(citation omitted). The limitation period may be tolled when the principles of equity would make the rigid application of a limitation period unfair. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010)("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2254(d) is subject to equitable tolling in appropriate cases."); Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
To be entitled to equitable tolling, [Petitioner] must show "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 130 S.Ct. at 2562 (quoting Pace, 544 U.S. at 418); Lawrence v. Florida, 127 S.Ct. 1079, 1085 (2007)(quoting id.). Courts must be sparing in their use of equitable tolling. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). In fact, the United States Court of Appeals for the Third Circuit has held that equitable tolling is proper "only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice." United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)(citation omitted).
The Supreme Court does not state in Martinez that a blanket allegation of the ineffectiveness of PCRA counsel can constitute a basis for equitable tolling of the habeas statute of limitations. The Martinez decision did not allow for equitable tolling of the AEDPA deadlines. See Capers, 2012 WL 5389513, at *4 (citing Martinez, 132 S.Ct. at 132 S.Ct. at 1315 (limiting decision to issue of whether there was cause for prisoner's procedural default on collateral review); Kingsberry v. Maryland, No. 12-1556, 2012 WL 2031991, at *1 (D.Md. June 4, 2012) ( "Martinez did not address equitable tolling in the context of ineffective assistance of counsel and provides no relief here."); and Peeples v. Citta, Nos. 11-6238, 12-2203, 2012 WL 1344819, at *6 n. 10 (D.N.J. Apr.16, 2012) (Martinez does not provide a basis for equitable tolling). See also Vogt v. Coleman, No. 08-CV-0530, 2012 WL 2930871, at *4 (W.D. Pa. July 18, 2012) (collecting cases) and Stromberg, 2012 WL 2849266, at *5 n.37 ("Martinez is not controlling in this case because the Court denied the petition as time-barred, not procedurally defaulted. Furthermore, the consideration of procedurally defaulted claims does not alleviate a petitioner's burden to overcome [the one-year] statute of limitations or to prove the merits of his case"). Martinez does not excuse Petitioner's failure to seek federal review of his claims in a timely fashion.
Petitioner does not identify any other possible basis for equitable tolling. None of the circumstances which warrant equitable tolling apply in this case to render the instant Petition timely because Petitioner did not act promptly to preserve his rights in this Court. Fahy, 240 F.3d at 244. Petitioner has not acknowledged that the Petition is untimely filed and has made no argument for tolling of any kind. Thus, he has failed to allege that some extraordinary circumstance prevented him from asserting his rights in a timely habeas corpus petition and has failed to demonstrate that he exercised reasonable diligence in investigating and bringing his claims. Merritt, 326 F.3d at 168.
In determining whether extraordinary circumstances exist to warrant the application of equitable tolling, this Court must also examine Petitioner's due diligence in pursuing the matter under the specific circumstances he faced. Traub v. Folio, No. 04-386, 2004 WL 2252115, at *2 (E.D. Pa. Oct. 5, 2004) (citing Schleuter v. Varner, 384 F.3d 69 (3d Cir. 2004))(affirming dismissal of habeas petition as time barred and not entitled to equitable tolling because lengthy periods of time had elapsed following his conviction before he sought relief). It is Petitioner's burden to show that he acted with reasonable diligence and that extraordinary circumstances caused his petition to be untimely. Id. Under the circumstances of this case, Petitioner did not act in a reasonably diligent fashion because a reasonably diligent petitioner would have acted promptly to preserve his rights not only in the state court, but also in this Court. Petitioner fails to allege any steps that he took to timely file the instant federal habeas petition. Accordingly, the Petition is time-barred.
C. Certificate of Appealability.
When a district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, a certificate of appealability should issue only if (1) the petition states a valid claim for the denial of a constitutional right, and (2) reasonable jurists would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, reasonable jurists could not disagree that the instant Petition is time-barred. It is statutorily barred, and neither statutory nor equitable tolling apply to this Petition.
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this 12th day of February, 2013, IT IS RESPECTFULLY RECOMMENDED that the Motion to Stay (Doc. No. 3) should be DENIED. It is also RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1) should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.
The Petitioner may file objections to this Report and Recommendation. See Local Civ. R. 72.1. Failure to timely file objections may constitute a waiver of any appellate rights.
BY THE COURT:
/s/ Henry S . Perkin
HENRY S. PERKIN
UNITED STATES MAGISTRATE JUDGE
Commonwealth v. Saunders, No. CP-23-CR-3314-03 (Oct. 3, 2012); Supp. App., Ex. P, p. 1 n.5.