GRAHAM v. WINGARD et al

Filing 22

ORDER THAT THE REPORT AND RECOMMENDATION (DOC. NO. 18) IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO. 1) IS DENIED WITH PREJUDICE; AND THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED FOR STATISTICAL PURPOSES.. SIGNED BY HONORABLE PETRESE B. TUCKER ON 10/27/17. 10/31/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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MARCUS LEE GRAHAM,
Petitioner,
v.
TREVOR A. WINGARD, et al.,
Respondents.

CIVIL ACTION
NO. 15-4883

ORDER
AND NOW, this _27th______ day of October, 2017, upon careful and independent
consideration of the Petition for Writ of Habeas Corpus (Doc. 1), Respondents’ Response in
Opposition thereto (Doc. 9), Petitioner’s Traverse (Doc. 15), the Report and Recommendation of
the United States Magistrate Judge Jacob P. Hart (Doc. 18), and Petitioner’s Objections to the
Report and Recommendation (Doc. 21), IT IS HEREBY ORDERED AND DECREED that:
1. The Report and Recommendation (Doc. 18) is APPROVED and ADOPTED; 1

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As Judge Hart determined, Petitioner’s application for the writ of habeas corpus is timebarred. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides a 1-year
limitation period to apply for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitation
period begins to run on the date the judgment becomes final, whether by the conclusion of direct
review or by the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
Properly filed petitions for collateral relief under Pennsylvania’s Post-Conviction Relief Act
(“PCRA”) toll the limitations period. 28 U.S.C. § 2244(d)(2).
Petitioner pled guilty on October 19, 2007, to first-degree murder, robbery, conspiracy to
commit robbery, kidnapping, and burglary. Pet. for Writ of Habeas Corpus ¶¶ 2, 5, 6, Doc. 1. He
was sentenced the same day to life imprisonment plus 40–80 years. Pet. for Writ of Habeas
Corpus ¶¶ 2–3, Doc. 1. The Superior Court affirmed Petitioner’s judgment of sentence on
December 2, 2009. Resp’ts’ Resp. in Opp’n to Pet. for Writ of Habeas Corpus, App. 227, Doc. 97. Petitioner’s judgment became final on January 1, 2010, which was the expiration of time for
Petitioner to seek review and request allocator in the Pennsylvania Supreme Court. Resp’ts’
Resp. in Opp’n to Pet. for Writ of Habeas Corpus, App. 241, Doc. 9-8. Therefore, Petitioner’s
limitations period began to run on January 1, 2010.
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2. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED WITH PREJUDICE;
and
3. There is no probable cause to issue a certificate of appealability.
IT IS FURTHER ORDERED that the Clerk of Court shall mark this case as CLOSED
for statistical purposes.

BY THE COURT:
/s/ Petrese B. Tucker
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Hon. Petrese B. Tucker, U.S.D.J.

Petitioner filed a timely pro se PCRA petition on November 1, 2010, at which point he
had used 304 days of his limitations period. Resp’ts’ Resp. in Opp’n to Pet. for Writ of Habeas
Corpus, App. 243, Doc. 9-8. On May 14, 2013, Petitioner’s counsel filed an amended motion for
post-conviction relief and accompanying memorandum. Resp’ts’ Resp. in Opp’n to Pet. for Writ
of Habeas Corpus, App. 277, Doc. 9-8. The trial court denied relief, and, upon Petitioner’s timely
appeal, the Pennsylvania Superior Court affirmed the denial on October 31, 2014. Resp’ts’ Resp.
in Opp’n to Pet. for Writ of Habeas Corpus, App. 724, Doc. 9-20.
Petitioner’s PCRA petition was disposed of on March 10, 2015, when the Pennsylvania
Supreme Court denied allocator. Resp’ts’ Resp. in Opp’n to Pet. for Writ of Habeas Corpus,
App. 738, Doc. 9-20. Petitioner’s limitations period began to run again on March 10, 2015, when
he had 61 days remaining. Therefore, Petitioner’s deadline for filing a timely habeas corpus
petition was May 10, 2015. Petitioner filed a second pro se PCRA petition on May 18, 2015.
Resp’ts’ Resp. in Opp’n to Pet. for Writ of Habeas Corpus, App. 740, Doc. 9-20. Because the
petition was untimely, the petition did not toll the AEDPA statute of limitations.
This petition for habeas corpus relief was filed on August 28, 2015, several months after
the expiration of the limitations period. Pet. for Writ of Habeas Corpus 1, Doc. 1. Because
Petitioner did not file this petition until after the expiration of the AEDPA statute of limitations,
it is untimely and must be dismissed. Additionally, Petitioner is not entitled to equitable tolling,
as Judge Hart determined. Doc. 18 at 5–7.
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