Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA WALTER J. POSTLEY : CIVIL ACTION
: v. : NO. 08-4479
: GERALD ROZUM, et al :
ORDER
AND NOW
, this 30th day of December, 2009, upon consideration of the Petition for Writ of Habeas Corpus (Document No. 1), the Report and Recommendation filed by United States Magistrate Judge David R. Strawbridge and the petitioner’s objections to the Report and Recommendation, and after a thorough and independent review of the record, it is ORDERED that:
1. The petitioner’s objections are OVERRULED ;
2. The Report and Recommendation of Magistrate Judge Strawbridge is APPROVED and ADOPTED ; and [1]
3. The petition for writ of habeas corpus is DENIED . *2 4. There is no probable cause to issue a certificate of appealability.
/s/ Timothy J. Savage TIMOTHY J. SAVAGE, J.
[1] Magistrate Judge Strawbridge’s report reflects a thorough review of the record and a thoughtful analysis of the issues raised. Accordingly, there is no need to am plify, except to consider a change in the procedural history that has occurred since the report was issued. At the tim e the Report and Recom m endation was issued, the petitioner’s second PCRA petition was still pending in the state court. However, on Decem ber 2, 2009, Judge Sheila W oods-Skipper denied petitioner’s second PCRA petition as untim ely. Petitioner objects to Magistrate Judge Strawbridge’s conclusion that his petition was untim ely. He argues that the habeas lim itations period was tolled by the filing of his second PCRA petition. In Pace v. DiGuglielmo , 544 U.S. 408, 417 (2005), the Suprem e Court held that a state post-conviction petition rejected by the state court as untim ely is not “properly filed” and does not toll the statute of lim itations under 28 U.S.C. § 2244(d)(2). In Pace , the petitioner claim ed that this ruling was unfair, because “a petitioner trying in good faith to exhaust state rem edies m ay litigate in state court for years only to find out . . . that he has not properly filed, and thus that his federal habeas petition is tim e barred.” Pace , 544 U.S. at 416 (internal quotation m arks om itted). The Suprem e Court explained that this situation can be avoided “by filing a ‘protective’ petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state rem edies are exhausted.” Id . at 416. See Rhines v. W eber , 544 U.S. 269 (2005). However, this device can only operate to toll the lim itations period if the petition was filed within the applicable tim e period. In this case, petitioner did not file his habeas petition within that period. Because the state court determ ined that petitioner’s second PCRA petition was untim ely, the statute of lim itations under § 2244(d)(2) was not tolled.