Opinion
Civil Action No. 2: 18-cv-1578
06-06-2019
MARCUS UPSHAW, Petitioner, v. ERIC TICE, Superintendent; DISTRICT ATTORNEY OF ALLEGHENY COUNTY, and ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
cc: MARCUS UPSHAW JW-8748 SCI-SMITHFIELD P.O. BOX 999 1120 PIKE STREET HUNTINGDON, PA 16652 (via U.S. First Class Mail) Ronald M. Wabby, Jr. Office of the District Attorney (via CM/ECF electronic notification)
MEMORANDUM OPINION
Pending before the Court is the Petition for Writ of Habeas Corpus filed by Petitioner Marcus Upshaw (ECF No. 3) and the Report and Recommendation of Chief United States Magistrate Judge Cynthia Reed Eddy recommending that the Petition for Writ of Habeas Corpus be dismissed as time barred and that no certificate of appealability be issued. (ECF No. 16). Petitioner was served with the Report and Recommendation at his listed address and was advised that he had until May 28, 2019, to file written objections to the Report and Recommendation. To date, Petitioner has not filed any objections nor has he sought an extension of time in which to do so.
If a party does not file timely objections to a magistrate judge's report and recommendation, the party may lose its right to de novo review by the district court, although the court must still give "reasoned consideration" to the magistrate judge's report before adopting it. Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987). The district court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes. --------
The Court has reviewed the matter and concludes that the Report and Recommendation correctly analyzes the issues and makes a sound recommendation. Petitioner may not have understood the implications of waiting so long to file his federal habeas corpus petition, but it is well established that a petitioner's "lack of legal knowledge or legal training does not alone justify equitable tolling." Ross v. Varano, 712 F.3d 784, 800 (3d Cir. 2013) (citing Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003) and Doe v. Menefee, 391 F.3d 147, 177 (2d Cir. 2004)). Accordingly, after de novo review of the petition and documents in the case, together with the Report and Recommendation, the Petition for Writ of Habeas Corpus will be DISMISSED as untimely.
An appropriate Order follows.
BY THE COURT:
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge Dated: June 6th, 2019 cc: MARCUS UPSHAW
JW-8748
SCI-SMITHFIELD
P.O. BOX 999
1120 PIKE STREET
HUNTINGDON, PA 16652
(via U.S. First Class Mail)
Ronald M. Wabby, Jr.
Office of the District Attorney
(via CM/ECF electronic notification)