Opinion
1:21-cv-293
12-11-2023
DOMINIQUE LEE MOFFATT, Petitioner v. DEREK OVERLANDER, et al, Respondents
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 5]
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
I. Recommendation
It is respectfully recommended that Petitioner's Petition for Writ of Habeas Corpus [ECF No. 5] be denied and that no certificate of appealability should issue.
II. Report
A. Introduction
Petitioner Dominique Lee Moffatt, an inmate incarcerated at the State Correctional Institution at Forest (SCI-Forest), initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). ECF No. 5. Petitioner is challenging the judgment of sentenced imposed upon him by the Court of Common Pleas of Erie County on January 27, 2015, at CP-25-CR-000046-2014. Id. at 1. In two identical grounds for relief, Petitioner contends that trial counsel rendered ineffective assistance by failing to challenge the application of a deadly weapon enhancement to his sentence. Id. at 5, 7. Respondent has filed an answer, see ECF No. 17, and Petitioner has filed a reply. ECF No. 20. As such, this matter is ripe for disposition.
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
B. Background
The Pennsylvania Superior Court outlined the factual and procedural background of this case as follows:
This appeal arises from the October 5, 2013 armed robbery of Barbato's restaurant in Erie, Pennsylvania, which was perpetrated by Appellant, with assistance from his co-conspirators, Michael Toran and Eric Atkins. Following a jury trial, Appellant was convicted of robbery, criminal conspiracy to commit robbery, terroristic threats, two counts of recklessly endangering another person (“REAP”), and receiving stolen property. Appellant received an aggregate sentence of ten to twenty years of incarceration.,
Following the reinstatement of Appellant's post-sentence motion and direct appeal rights nunc pro tunc, Appellant filed a counseled postsentence motion, challenging the weight and sufficiency of the evidence, which was denied. A direct appeal followed. The trial court determined that the issues were insufficiently pled, but still addressed the merits of each claim in its Pa.R.A.P. 1925(a) opinion. We affirmed the judgment of sentence without reaching the merits of Appellant's issues, finding them both waived. Commonwealth v. Moffatt, 169 A.3d 1160 (Pa.Super. 2017) (unpublished memorandum). On August 29, 2017, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Moffatt, 170 A.3d 1015 (Pa. 2017).
Appellant filed a timely pro se PCRA petition, averring that his prior record score was incorrectly calculated. Appointed counsel initially submitted a “no merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 and petition seeking leave to withdraw, explaining that Appellant's sentencing guidelines were properly calculated using Appellant's prior juvenile adjudications. Appellant responded to his attorney's letter, seeking to amend his PCRA petition to assert allegations of direct appeal counsel's ineffectiveness. While the “nomerit” letter was still pending, counsel submitted an amended PCRA petition challenging the effectiveness of direct appeal counsel for failing to properly preserve Appellant's challenges to the weight and sufficiency of the evidence. PCRA counsel also sought to rescind his petition for
leave to withdraw as counsel. Ultimately, counsel's petition to withdraw was denied.
The PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing, finding that the sentencing issue lacked merit and concluding that Appellant was not prejudiced by direct appeal counsel's failure to properly plead challenges to the weight and sufficiency of the Commonwealth's evidence. On appeal, we affirmed the order dismissing the PCRA petition and our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Moffatt, 215 A.3d 650 (Pa.Super. 2019) (unpublished memorandum) appeal denied 217 A.3d 200 (Pa. 2019).
On November 25, 2019, Appellant filed his second pro se PCRA petition, which is the subject of the instant appeal. Therein, Appellant again asserted that his sentence was illegal due to allegedly erroneously calculated sentencing guidelines. However, this time Appellant asserted that the illegality flowed from the incorrect application of a deadly weapon enhancement, not the inaccurate calculation of his prior record score. In a memorandum of law appended to the PCRA petition, Appellant also challenged the effectiveness of PCRA counsel. The PCRA court responded with Rule 907 notice of its intent to dismiss the petition without a hearing, explaining that the PCRA petition was facially untimely and Appellant had not pled an exception to the time bar.
Appellant filed an objection to the Rule 907 notice, wherein he conceded that his petition was facially untimely, but asserted that substantive review of the merits of his petition was appropriate because he qualified for the governmental interference exception to the PCRA time bar. Appellant argued that since the Commonwealth, trial counsel, and the trial court had misinterpreted the deadly weapon enhancement statute at sentencing, the government had misled him into thinking his sentence was legal. After reviewing Appellant's objections, the PCRA court dismissed the petition as untimely.Commonwealth v. Moffat, 2021 WL 841036, at *1-2 (Pa. Super. Ct. Mar. 5, 2021).
On October 25, 2021, Petitioner filed the instant habeas petition. He fully articulates the basis for his ineffective assistance of trial counsel claim as follows:
Counsel rendered ineffective assistance of counsel for failing to object at sentencing to the deadly weapon used enhancement which was unconstitutional and violated Petitioner's Sixth Amendment right under the United States Constitution. Pursuant to [Alleyne v. United States} at
sentencing, the state presented to the court for enhancement of my sentence, statute 42 Pa.C.S. § 9712 which the judge used to increase my sentence. This was an Alleyne violation as this statute and factors should have been decide by the jury.
ECF No. 19 at 6. Acknowledging that this claim has been procedurally defaulted, Petitioner requests that the Court excuse the default pursuant to Martinez v. Ryan. ECF No. 5 at 5.
In Alleyne, the United States Supreme Court held a fact increasing the mandatory minimum sentence for a given crime is an element of the offense and must be proven to a jury beyond a reasonable doubt. 570 U.S. at 102. The Court limited its holding to mandatory minimum sentences and noted it did not affect the continuing validity of discretionary sentencing. Id. at 116-117.
C. Analysis
1. Statute of limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section.
In analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1). Caldwell v. Mahally, etal., 2019 WL 5741706, *5 (W.D. Pa. Nov. 5,2019). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to section 2244(d)(2). Id. at *6. Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. Id. at *8.
Petitioner asserts two identical grounds for relief in his petition, each of which stems from his sentencing. These claims do not implicate newly enunciated constitutional rights or facts that were discovered later. Furthermore, it does not appear that there were any state-created impediments that prevented Petitioner from raising these claims sooner. Consequently, the “trigger date” for these claims is the date on which Petitioner's judgment of sentence became final: August 29,2017, when the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal. Pa.RA.P. 903(a); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review). The one-year limitations period for filing a habeas corpus petition began to run on that date. 28 U.S.C. § 2244(d)(1)(A). Accordingly, Petitioner had to file any federal habeas petition concerning these trial-related claims by August 29,2018. Pursuant to the prisoner mailbox rule, the instant habeas petition was filed on October 20, 2021, the date he signed it. Because this date falls after the expiration of the one-year limitations period, his claims are statutorily time-barred. Given this deficiency, the Court must determine whether Petitioner can take advantage of the statutory tolling provision set out in Section 2244(d)(2).
Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a “properly filed” state post-conviction proceeding. Petitioner filed his first PCRA petition on October 30,2017, at which point 62 days of his one-year limitations period had expired. Those proceedings were “properly filed,” and, thus, tolled the statute of limitations until August 19, 2019, when the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal from the Pennsylvania Superior Court's order affirming the dismissal of the PCRA petition. Pa.R.A.P. 1113(a), Swartz, 204 F.3d at 420-21. At that time, Petitioner had 303 days remaining in the limitations period.
Petitioner filed a second PCRA petition on November 25,2019. Moffatt, 2021 WL 841036, at *2. The PCRA court dismissed that petition as untimely on June 23, 2020, and the Superior Court affirmed on March 5, 2021. See id. at *4 (“[S]ince Appellant filed his petition more than a year after his judgment of sentence became final, and has failed to plead and prove that an exception to the PCRA's time constraints apply, we affirm the order of the PCRA court dismissing the petition as untimely.”). As noted above, Section 2244(d)(2). provides that the one-year limitations period is tolled during the pendency of a “properly filed” state post-conviction proceeding. The Court of Appeals for the Third Circuit has repeatedly held, however, that “an untimely PCRA petition does not toll the statute of limitations for a federal habeas corpus petition” because such a petition “was not properly filed as a matter of state law.” Merritt v. Blaine, 326 F.3d 157, 167 (3d Cir. 2003) (quoting Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)). Consequently, Petitioner's second PCRA petition no tolling effect on the AEDPA statute of limitations. See, e.g., Lipani v. Hainsworth, 2022 WL 141534, *3 (M.D. Pa. Jan. 14, 2022) (“Because these PCRA petitions were untimely, they do not properly toll the AEDPA statute of limitations.”).
In the absence of additional tolling, the statute of limitations for Petitioner to file a timely federal habeas petition expired on June 27, 2020, 303 days after his first PCRA proceeding concluded. His petition, filed on October 25, 2021, missed that mark by over a year.
Before dismissing the petition as untimely, the Court must also consider whether AEDPA's statute of limitations should be equitably tolled. See Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert, denied, 540 U.S. 826 (2003) (citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998) (citation omitted)). To receive the benefit of equitable tolling, Petitioner must demonstrate that he: (1) pursued his rights diligently, and (2) extraordinary circumstances prevented him from filing a timely petition. Holland, 560 U.S. at 649. Petitioner bears a “strong burden to show specific facts” supporting equitable tolling. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304,1307 (11th Cir. 2008)). He has made no attempt to meet this burden. As a result, federal review of each of the grounds for relief raised in Petitioner's § 2254 petition is barred by AEDPA's one-year statute of limitations.
2. Exhaustion and procedural default
In addition to being time-barred, Petitioner failed to exhaust the claims raised in the instant petition by fairly presenting them to the state courts for review. As a general matter, a federal district court may not consider the merits of a habeas petition unless the petitioner has “exhausted the remedies available” in state court. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A petitioner satisfies the exhaustion requirement “only if [he or she] can show that [they] fairly presented the federal claim at each level of the established state-court system for review.” Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The purpose of the exhaustion requirement is to “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts ... by invoking one complete round of the State's established appellate review process.” O 'Sullivan, 526 U.S. at 845.
In order to “fairly present” a claim for exhaustion purposes, the petitioner must advance the claim's “factual and legal substance to the state courts in a maimer that puts them on notice that a federal claim is being asserted.” Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir. 2018) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). A petitioner may exhaust a federal claim either by raising it on direct appeal or presenting it in post-conviction PCRA proceedings. O'Sullivan, 526 U.S. at 845. Either way, the petitioner must present his federal constitutional claims “to each level of the state courts empowered to hear those claims.” Id. at 847 (“requiring state prisoners [in order to fully exhaust their claims] to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State”). “Once a petitioner's federal claims have been fairly presented to the state's highest court, the exhaustion requirement is satisfied.” Stoss v. Estock, 2019 WL 2160464, at *3 (M.D. Pa. May 17, 2019) (citing Castille v. Peoples, 489 U.S. 346, 350 (1989)).
Although Petitioner attempted to present his ineffective assistance of trial counsel claim to the state courts in his second PCRA petition, the PCRA court dismissed that petition as untimely, precluding review on the merits. As such, Petitioner's claim runs afoul of an important corollary to the exhaustion requirement: the doctrine of procedural default. When a petitioner attempts to fairly present his claim to the state courts, but a state procedural rule bars the applicant from obtaining review, “the exhaustion requirement is satisfied” due to the lack of available state process, but the claims “are considered to be procedurally defaulted.” McKenzie v. Tice, 2020 WL 1330668, at *5 (M.D. Pa. Mar. 23, 2020) (quoting McCandless v. Vaughn, 172 F.3d255, 261 (3d Cir. 1999)). See also Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of those claims “in the first instance.”). So long as the state procedural rule at issue is “independent” of the underlying federal question and “adequate,” meaning that it is “firmly established and regularly followed,” Ford v. Georgia, 498 U.S. 411 424 (1991), the underlying claim may not ordinarily be reviewed by a federal court. Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (“[A] federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule.”) (citations omitted).
In the instant case, the relevant procedural rule, set forth in 42 Pa.C.S. § 9545(b), provides that a PCRA petition must ordinarily be filed “within one year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b). Courts have routinely held that Pennsylvania's statute of limitations for PCRA petitions is an adequate and independent state procedural rule. See, e.g., Marcy v. Warden, SCI Graterford, 2020 WL 1904466, at *5 (M.D. Pa. Apr. 17, 2020) (noting that the PCRA's time bar rests on adequate and independent state law procedural grounds); Campell v. Pennsylvania, 2019 WL 1051204, at *1 (M.D. Pa. Jan. 30, 2019) (same). Accordingly, unless Petitioner can demonstrate circumstances that would serve to excuse the procedural default of his claim, he cannot obtain review in this Court. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002) (noting that the burden lies with a petitioner to demonstrate circumstances that would excuse a procedural default); see also Coleman, 501 U.S. at 750.
Petitioner attempts to meet this burden by invoking the United States Supreme Court's decision in Martinez v. Ryan, 566 U.S. 1 (2012). As a general matter, a petitioner seeking review of a procedurally defaulted claim must demonstrate either: (1) “cause” for the default and “actual prejudice” as a result of the alleged violation of federal law; or (2) that the failure to consider the claims will result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. In Martinez, the Supreme Court held that ineffective representation by PCRA counsel can, in certain circumstances, satisfy the “cause” requirement necessary to overcome a defaulted claim of ineffective assistance of trial counsel. To fit within the Martinez exception, a petitioner must establish: (1) that the underlying ineffective assistance of trial counsel claim is “substantial,” meaning that it has “some merit,” Workman v. Sup't Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019); and (2) that PCRA counsel was “ineffective” within the meaning of Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner does not argue that a fundamental miscarriage of justice will occur if this Court does not consider his claim.
Although Petitioner argues, in conclusory fashion, that PCRA counsel “cannot be said to have a reasonable basis for not challenging trial counsel's ineffectiveness at sentencing other than to intentionally prejudice defendant,” he has not provided any evidence to support his contention. Instead, he asserts that “an evidentiary hearing is warranted” to develop this claim more fully. ECF No. 6 at 7. Before the United States Supreme Court's recent decision in Shinn v. Ramirez, 142 S.Ct. 1718 (2022), the Court would have had the discretion to consider that request. Prior to Shinn, the rule in the Third Circuit (and in many other circuits) was that § 2254(e)(2)'s prohibition on evidentiary hearings did not apply to the issue of whether a petitioner could overcome the default of a claim. See, e.g., Cristin v. Brennan, 281 F.3d 404, 413 (3d Cir. 2002) (concluding “that the plaining meaning of § 2254(e)(2)'s introductory language does not preclude federal hearings on excuses for procedural default at the state level” because “a hearing used to support an excuse for procedural default is not a hearing on ‘a claim' under AEDPA because it is not a claim for relief on the merits” and because a state prisoner “cannot be faulted ... for not having previously presented the facts underlying arguments that would have been, on the whole, irrelevant or premature before state courts.”). Under the preShinn paradigm, if a federal habeas court held a hearing to determine whether the petitioner could overcome the default of a claim, and the petitioner successfully showed that he or she could do so, the court could then consider the evidence introduced at the hearing in ruling on the merits of the underlying habeas claim. See, e.g., Shinn, 142 S.Ct. at 1729-30.
Specifically, 28 U.S.C. § 2254(e)(2) provides that: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim rmless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.(Emphasis added).
Shinn clarified that a federal habeas court cannot proceed in that manner. In Shinn, the Supreme Court confirmed, “based on the text of § 2254(e)(2), that a habeas court ‘may not consider [new] evidence on the merits of a negligent prisoner's defaulted claim unless the exceptions in § 2254(e)(2) are satisfied'-even in the context of a Martinez hearing.” Gelsinger v. Superintendent Fayette SCI, 2022 WL 3666228, at *2 (3d Cir. Aug. 25, 2022) (quoting Shinn, 142 S.Ct. at 1738). Critically, the Court also held that “state postconviction counsel's ineffective assistance in developing the state-court record” must be “attributed to the prisoner.” 142 S.Ct. at 1734. Thus, when a petitioner faults state post-conviction counsel for failing to develop evidence to support a defaulted habeas claim, as is the case here, a federal habeas court is prohibited from holding an evidentiary hearing or otherwise expanding the state court record to introduce evidence to support that claim unless the petitioner has satisfied one of 2254(e)(2)'s two narrow exceptions to AEDPA's general bar on evidentiary hearings. Id. at 1735. This prevents a federal habeas court from performing an “end-run” on AEDPA's stringent standards by conducting a hearing on a Martinez claim and then using the expanded federal record to decide the merits of the underlying habeas claim. Williams v. Superintendent Mahanoy SCI, 45 F.4th 713 (3d Cir. 2022) (quoting Shinn, 142 S.Ct. at 1738).
Importantly, the Court of Appeals for the Third Circuit has further interpreted Shinn to mean that, before holding a hearing on whether a petitioner can overcome a default of a claim, a federal habeas court must first decide whether the underlying defaulted habeas claim “succeeds considering only the state court record.” Id. at 724 (emphasis added). If the court concludes that the underlying claim is not supported by the state court record, it “should deny relief without more.” Id. That is, if the state court record alone does not allow the petitioner to succeed on the habeas claim, the court must skip a hearing on whether the petitioner can overcome the default “altogether and deny habeas relief' on the underlying habeas claim. Id. at 720-24 (explaining that the court “need not dwell” on the issue of whether the petitioner can overcome his default if the petitioner cannot show that his trial counsel was ineffective when considering only the facts developed in state court).
Here, the evidence in the state court record, standing alone, does not support Petitioner's defaulted claims for relief. As an initial matter, Petitioner's underlying legal contention - that the trial court violated Alleyne by applying a deadly weapon enhancement to his sentence without submitting the issue to a jury - is simply incorrect. See, e.g., Chase v. Supt., State Correctional Institution at Albion, 2021 WL 5044833, at *13 (M.D. Pa. Sept. 8, 2021) (“It is, however, well established in Pennsylvania that the application of the deadly weapon enhancement does not implicate Alleyne B). See also Gonzalez v. Gurman, 2018 WL 3520678, at *10 (E.D. Pa. July 20, 2018) (denying IATC claim because “counsel cannot be found ineffective for failing to raise [the] meritless claim” that a deadly weapon enhancement was unconstitutional under Alleyne). Moreover, even if Petitioner's argument had some arguable merit, “[t]here is no testimony from trial counsel explaining why he did, or failed to do, any of the many things Petitioner faults him for.” Rush v. Attorney General of Pennsylvania, 2023 WL 5756507, at *18 (W.D. Pa. Aug. 15, 2023). See also Dubrock v. Superintendent of SCI Somerset, 2022 WL 20466095, at *12 (W.D. Pa. Nov. 18, 2022) (rejecting Martinez claim because “[t]here is no testimony from trial counsel in the state court record or any other evidence from which the undersigned can conclude that trial counsel was ineffective”); Burt v. Titlow, 571 U.S. 12, 23 (2013) (“It should go without saying that the absence of evidence cannot overcome the ‘strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'”) (quoting Strickland, 466 U.S. at 689). In the absence of evidence to “overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance,” and given Petitioner's inability to satisfy the two limited scenarios set forth in § 2254(e)(2), he cannot demonstrate cause for the procedural default of his IATC claims. Williams, 45 F.4th at 726. Dismissal is warranted.
D. Certificate of Appealability
A certificate of appealability should be issued only when a petitioner has made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2254(c)(2). When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, “a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the Court concludes that jurists of reason would not find it debatable whether Moffatt's claims are both time-barred and procedurally defaulted. Accordingly, a certificate of appealability should be denied.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Petitioner's petition for writ of habeas corpus be DENIED and that no certificate of appealability should issue.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).