Hernandez v. Folino, 13-3515. (2018)
Court: District Court, E.D. Pennsylvania
Number: infdco20181105h14
Visitors: 8
Filed: Nov. 02, 2018
Latest Update: Nov. 02, 2018
Summary: ORDER CYNTHIA M. RUFE , District Judge . AND NOW, this 2nd day of November 2018, upon careful and independent consideration of the Petition for Writ of Habeas Corpus, the response, the reply, the supplemental response, and available state court records, and after review of the Report and Recommendation of United States Magistrate Judge David R. Strawbridge [Doc. No. 28], it is hereby ORDERED that: 1. The Report and Recommendation is APPROVED and ADOPTED 1 ; 2. The Petition for Wri
Summary: ORDER CYNTHIA M. RUFE , District Judge . AND NOW, this 2nd day of November 2018, upon careful and independent consideration of the Petition for Writ of Habeas Corpus, the response, the reply, the supplemental response, and available state court records, and after review of the Report and Recommendation of United States Magistrate Judge David R. Strawbridge [Doc. No. 28], it is hereby ORDERED that: 1. The Report and Recommendation is APPROVED and ADOPTED 1 ; 2. The Petition for Writ..
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ORDER
CYNTHIA M. RUFE, District Judge.
AND NOW, this 2nd day of November 2018, upon careful and independent consideration of the Petition for Writ of Habeas Corpus, the response, the reply, the supplemental response, and available state court records, and after review of the Report and Recommendation of United States Magistrate Judge David R. Strawbridge [Doc. No. 28], it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED1;
2. The Petition for Writ of Habeas Corpus is DISMISSED with prejudice and without an evidentiary hearing;
3. There is no cause to issue a certificate of appealability2; and
4. The Clerk of Court is directed to CLOSE the case.
It is so ORDERED.
FootNotes
1. The Court agrees with the R&R that Petitioner's § 2254 petition be dismissed. Petitioner's Miller claim, asserted in Ground One, is now moot because the state court has already vacated Petitioner's mandatory life sentences and remanded the case to the Philadelphia Court of Common Pleas for resentencing. The ineffective assistance of counsel claim, asserted in Ground Two, is untimely because Petitioner filed his habeas petition more than four years after the limitations period expired and has not come forward with any allegations or evidence to excuse his untimely filing. 28 U.S.C. § 2244(d). Therefore, Petitioner's § 2254 petition will be dismissed.
2. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000)
Source: Leagle
