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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARMINE A. LAURO, SR. : CIVIL ACTION

Petitioner, :

 v. :

: 

GEORGE A. PATRICK, et al. : NO. 04-4102

Respondents. :

MEMORANDUM

Baylson, J. December 29, 2005

I. Introduction

Petitioner Carmine A. Lauro, Sr. (“Petitioner” or “Lauro”) filed a pro se Petition for

Habeas Corpus in this Court pursuant to 28 U.S.C. § 2254 on August 30, 2004 and a Motion to

Stay Proceedings on September 13, 2004. This Court referred the case to Chief Magistrate Judge

M. Faith Angell (“the Magistrate Judge”) on September 20, 2004. The case was then placed in

suspense. On June 17, 2005, the Magistrate Judge issued a Report and Recommendation

(“R&R”) (Doc. No. 13) pursuant to 28 U.S.C. § 636(b)(1)(C) suggesting that this Court dismiss

the petition as time barred under 28 U.S.C. § 2244(d)(1) and deny the Motion to Stay

Proceedings. Petitioner filed Objections on July 1, 2005. Upon independent and thorough

consideration of the record and all filings in this Court, Petitioner’s objections are overruled and

the recommendations by the Magistrate Judge are accepted.

II. Background and Procedural History

Following a jury trial in the Court of Common Pleas of Delaware County, Pennsylvania,

Lauro was convicted of multiple counts of rape and related offenses. He filed a direct appeal to

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the Superior Court of Pennsylvania and his judgment of sentence was affirmed by that court in a

Memorandum Opinion and Judgment Order dated December 6, 1999. See Commonwealth v.

Lauro, 750 A.2d 370 (Pa. Super. Ct. 1999). No petition for Allowance of Appeal to the

Pennsylvania Supreme Court was filed. Lauro is currently incarcerated at the State Correctional

Institution Houtzdale, Pennsylvania, where he is serving an aggregate sentence of twenty-five

and a half to eighty years imprisonment. 

In his federal habeas petition, Lauro asserted the following grounds: (1) that he was

convicted in violation of his privilege against self-incrimination; and (2) that trial counsel was

ineffective for failing to recall witnesses after their original testimony was contradicted and that

appellate counsel was ineffective for failing to raise relevant issues. Pet. at 9–10, Rider at 5–6.

On December 15, 2004, the Respondents answered Lauro’s habeas petition, arguing: (1)

that it should be dismissed for untimeliness; (2) that ground one of the petition and portions of

the claims in ground two have been procedurally defaulted and should not be reviewed; and (3)

that Petitioner’s claims, even if reviewed, should be rejected on the merits.

III. Summary of Magistrate Judge’s Report and Recommendation and Petitioner’s 

Objections

The Magistrate Judge concluded in the R&R that this habeas corpus petition should be

dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1). R&R at 11. Specifically, the R&R

concludes that Petitioner’s writ of habeas corpus is time barred under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), since he failed to file his petition within one

year from the date on which his judgment of conviction became final. The AEDPA amendments

allow for tolling of the one-year statute of limitations for the “time during which a properly filed

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 In a letter dated November 8, 2005, Petitioner states that the state courts have not yet disposed

of his “third PCRA petition” (which is, in actuality, an appeal of the denial of his second PCRA petition). 

Petitioner therefore requests that this Court stay his pending habeas corpus petition while his notice of

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application for State post-conviction or other collateral review with respect to the pertinent claim

is pending” 28 U.S.C § 2244(d)(2). The Magistrate Judge determined that Petitioner’s state

conviction became final on January 6, 2000 and that he did not file his first Pennsylvania PostConviction Relief Act (“PCRA”) petition until November 27, 2000, thus using 326 days of his

one-year statutory period. R&R at 10. Petitioner’s statutory period again began to run on August

25, 2003, one day after allocatur review of his PCRA petition was denied by the Pennsylvania

Supreme Court. Id. Petitioner’s statutory period statutory period expired on or about October 3,

2003 and his federal habeas petition, filed August 23, 2004, was over ten months beyond the

statutory deadline. Id. As for the doctrine of equitable tolling, the R&R determined that the

Petitioner had not alleged, and the record did not support, a finding that the case presents the

“rare situation” requiring equitable tolling of the statute. 

In his objections to the R&R, Petitioner argues that the conclusion therein is based in part

on the erroneous assumption that Petitioner did not file a notice of appeal from the order

dismissing his second PCRA petition. He contends that though he did file a timely notice of

appeal on May 6, 2005, the Pennsylvania Superior Court subsequently informed him that no

notice of appeal had been forwarded. Pet’s Objections at 2. Petitioner argues that only by filing

a third PCRA petition alleging governmental interference with his right to appeal could he have

his “Pennsylvania constitutional right of appeal restored.” Id. Petitioner asserts that the state

courts should have an opportunity to address the merits of his PCRA appeal before the habeas

corpus petition is dismissed.1 Id. at 3.

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appeal remains pending in the state courts. Petitioner’s second PCRA petition was dismissed on

April 7, 2005 on the basis that it was untimely and without merit. 

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IV.Discussion

Though Petitioner makes various arguments concerning his second PCRA petition,

whether or not a notice of appeal was or was not timely filed in state court has no bearing on the

timeliness of the instant federal habeas petition. Petitioner thus presents no basis for a stay of the

federal proceedings while the appeal of the denial of his second PCRA petition is still pending. 

Similarly, Petitioner has failed to allege any grounds for equitable tolling in this case nor does the

record support the invocation of that doctrine. Therefore, for the reasons stated by Chief

Magistrate Judge Angell, both the Petition for Writ of Habeas Corpus and the Motion to Stay

Proceedings will be dismissed.

An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CRAIG SAUNDERS : CIVIL ACTION

Petitioner, :

:

 v. :

 : NO. 04-4102

JEFFREY A. Beard, et al. : 

Respondents. :

ORDER

AND NOW, this 29th day of December, 2005, upon careful and independent

consideration of the pleadings and the record herein, and after review of the Report and

Recommendation of M. Faith Angell, Chief United States Magistrate Judge, it is hereby

ORDERED as follows:

1. The case is removed from the suspense docket.

2. The Report and Recommendation is APPROVED AND ADOPTED.

3. The Petition for Writ of Habeas Corpus is DENIED AND DISMISSED with

prejudice, as time barred, under 28 U.S.C. § 2244(d)(1).

4. Petitioner’s Motion to Stay Proceedings (Doc. No. 2) is DENIED.

5. The Clerk shall close this case.

6. A certificate of appealability is DENIED.

BY THE COURT:

 s/ Michael M. Baylson 

Michael M. Baylson, U.S.D.J.

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