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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDWIN NOEL CASIANO, :

Petitioner, : CIVIL ACTION

:

v. :

:

LOUIS S. FOLINO, et al. :

Respondents : NO. 05-4461

ORDER

AND NOW, this 19th day of April, 2006, upon careful and

independent consideration of the Petition for Writ of Habeas

Corpus, and the respondents’ answer, and after review of the

Report and Recommendation of United States Magistrate Judge

Thomas J. Rueter (Docket No. 11) and the petitioner’s objections

thereto, IT IS HEREBY ORDERED that:

1. The petitioner’s objections are OVERRULED.

2. The Report and Recommendation is APPROVED AND

ADOPTED.

3. The Petition for Writ of Habeas Corpus is DENIED

AND DISMISSED AS TIME BARRED pursuant to 28 U.S.C.

§ 2244(d)(1). 

4. There is no basis for the issuance of a

certificate of appealability.

The report and recommendation concluded that the

petitioner’s federal habeas petition was filed after the

expiration of the one year statute of limitations and that the

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limitations period cannot be equitably tolled. In his

objections, the petitioner argues that the limitations period

should have been equitably tolled because he did not receive

notice of an October 16, 2002 decision of the Pennsylvania

Superior Court that affirmed the dismissal of his first PCRA

petition until July 18, 2003 and because of a second PCRA

petition that was filed on September 15, 2003, which he claims

the Pennsylvania Superior Court incorrectly concluded was

untimely.

Similar arguments were addressed in the report and

recommendation. The Court concurs with the conclusions therein

that such arguments do not demonstrate the requisite diligence or

extraordinary circumstances that would establish a justification

for equitable tolling. Additionally, to the extent that the

petitioner asks the Court to review the decision of the

Pennsylvania Superior Court that his second PCRA decision was

untimely under Pennsylvania law, the Court concludes that it

cannot review such a decision. See Merritt v. Blaine, 326 F.3d

157, 168 (3d Cir. 2003). 

Finally, the report and recommendation found that the

respondents did not raise the statute of limitations with respect

to all of the petitioner’s claims, but nevertheless recommended

that the entire petition be dismissed as untimely because a

magistrate judge may raise the statute of limitations in a habeas

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case sua sponte. The Court notes that the Court of Appeals for

the Third Circuit approved of magistrate and district judges

exercising their discretion to raise the statute of limitations

sua sponte in habeas cases in both Long v. Wilson, 393 F.3d 390,

403 (3d Cir. 2004) and United States v. Bendolph, 409 F.3d 155,

158 (3d Cir. 2005). However, the Court need not address this

issue because the Court reads the respondents’ answer and

supporting brief as raising the statute of limitations as to all

of the petitioner’s claims.

The petitioner raised six claims in his federal habeas

petition. However, two of the petitioner’s claims argued that

other claims were in fact timely. The respondents’ answer and

supporting brief argued that the petition itself was time barred

and therefor the two claims dealing with the limitations period

were meritless. Thus, the Court concludes that the respondents

did not limit their statute of limitations argument to only two

of the petitioner’s claims but instead asserted in the answer

that the entire petition was time barred. 

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Having reviewed the petitioner’s objections to the

report and recommendation and following an independent review of

the record, the Court agrees with the report and recommendation

that the petition for habeas corpus must be dismissed as time

barred.

BY THE COURT:

 /s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J

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