Tuesday, June 05, 2007

Habeas Corpus: Plain Error Review When Party Fails to Object to Magistrate’s R & R

In Nara v. Frank, No. 05-4779 (3d Cir. May 8, 2007), the Third Circuit held that “where a party fails to file timely objections to a magistrate judge’s R & R in a habeas proceeding, and the district court adopts the R & R, we will only review the R & R for plain error.”

Nara pleaded guilty to two counts of murder in the first degree and was sentenced to two concurrent life sentences. Over the next eleven years Nara filed three petitions for post-conviction relief with the Pennsylvania state courts, claiming his due process rights were violated because his guilty pleas were accepted while he was mentally incompetent and his counsel was ineffective for failing to have his competency evaluated. With respect to Nara’s second petition, the Court of Common Pleas issued an order allowing him to withdraw his guilty pleas, having been persuaded by “quite convincing” and “unrebutted testimony” from a forensic psychiatrist that Nara was in fact incompetent when he pleaded guilty. The Superior Court reversed, vacating the order and reinstating Nara’s guilty pleas.

After his third unsuccessful petition for post-conviction relief at the state level, Nara initiated a federal habeas proceeding, and was subsequently denied relief by the district court for failing to file within AEDPA’s one-year statute of limitations. The Third Circuit remanded to the district court for a hearing on whether Nara’s “ongoing periods of mental incompetence” and allegations that he was abandoned by his lawyer following his last appeal to the Pennsylvania Supreme Court justified equitably tolling the statute of limitations. A magistrate judge then issued a Report and Recommendation (“R & R”) wherein he concluded that Nara had exhausted his incompetency claim at the state level, that claim was not procedurally defaulted, the determination that Nara was incompetent was entitled to a presumption of correctness under 28 U.S.C. §2254(e)(1) and Nara’s federal due process rights were violated when he entered his guilty plea because he was mentally incompetent. Neither party objected to the R & R, and so noting the district court adopted the R & R and issued the recommended order. The Commonwealth filed a motion weeks later with the district court requesting vacatur pursuant to FRCP 60(b). The district court dismissed the untimely motion as moot, having been filed after the ten-day window allowed by the R & R for objections. The Commonwealth appealed.

With respect to the Commonwealth’s untimely motion, the Third Circuit found that their “overall negligence in handling the matter” precluded a finding of “excusable neglect.” The Third Circuit found plain error review to be appropriate under the circumstances because “it recognizes the difference between failing to timely assert a right, and voluntarily waiving a right. Failing to timely assert a right results in forfeiture, which permits plain error review,” while “[w]aiver, on the other hand, extinguishes any error.” Using this standard of review, the Court affirmed the district court’s order.

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