Filing 4

REPORT AND RECOMMENDATIONS re 2 Petition for Writ of Habeas Corpus filed by THOMAS DAVIS, recommending that petition be dismissed and that a certificate of appealability be denied. Objections to R&R due by 9/7/2006. Signed by Judge Robert C. Mitchell on 08/21/2006. (Mitchell, Robert)

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DAVIS v. STOWITZKY Doc. 4 Case 2:06-cv-01086-MBC-RCM Document 4 Filed 08/21/2006 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA THOMAS DAVIS, BZ-9982, Petitioner, v. PAUL J. STOWITZKY, et al., Respondents. 1 1 1 ) Civil Action No. 06- 1086 ) 1 ) Report and Recommendation I. Recommendation: It is respectfblly recommended that the petition of Thomas Davis for a writ of habeas corpus be dismissed and that a certificate of appealability be denied as the petition is time barred. 11. Report: Thomas Davis, an inmate at the State Regional Correctional Facility at Mercer has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. Davis is presently serving two consecutive seven to fourteen year periods of imprisonment following his conviction of robbery at Nos. 9100184 and 8904099, in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on January 14, 1992, and no appeal was pursued. According to the petitioner, he submitted post-conviction petitions in which he contended that actual DNA evidence would have exonerated him. Although the petition is vague, it would appear that on January 10, 1991, the Pennsylvania Supreme Court entered an Order remanding Dockets.Justia.com Case 2:06-cv-01086-MBC-RCM Document 4 Filed 08/21/2006 Page 2 of 11 the matter to the trial court for a determination of whether the Commonwealth exercised due diligence in bringing the case to trial.' On May 24, 1991, the trial court determined that the petitioner had been brought to trial in a timely fashion. In response to the petitioner's fourteenth post-conviction petition, the Superior Court noted: [o]n May 3, 1991, a jury found [Appellant] guilty of two counts of robbery ... On January 14, 1992, he was sentenced to an aggregate term of 14 to 28 years' imprisonment. Appellant did not file a direct appeal, but filed a series of unsuccessfbl PCRA petitions ...2 Davis now comes before this Court and argues that he is entitled to release on the grounds of actual innocence in that no reasonable trier of fact would have convicted him had the DNA evidence been presented. See: House v. Bell, 126 S.Ct. 2064 (2006). While there is a lengthy procedural history in this case, on June 27, 2006, the Superior Court dismissed the petitioner's "fourteenth petition filed pursuant to the Post Conviction Relief The instant petition was signed on August 14, 2006. As the Superior Court observed, on September 20,2004, it affirmed the dismissal of the petitioner's ninth post-conviction petition as untimely and that the petitioner had failed to invoke an exception to the timeliness req~irement.~ It is provided-in 28 U.S.C. 8 2244(d)(l) and (d)(2) that: (1) A 1-year period of limitation shall apply to the application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The See: Exhibit (d) to the petition. See: June 27,2006 Memorandum of the Superior Court attached hereto. Id. Id. Case 2:06-cv-01086-MBC-RCM Document 4 Filed 08/21/2006 Page 3 of 11 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 the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or @) the date on which the factual predicate of 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 subsection. In the instant case, following remand, on May 24, 1991, the court of Common Pleas determined that the petitioner trial had commenced in a timely fashion. And sentence was imposed on January 14, 1992. No appeal was pursued. In Kapral v. United States, 166 F.3d 565 (3d Cir. 1999), the Court noted that in the absence of the filing of a petition for discretionary review, the judgment becomes final when the time period in which to seek that review expires. Thus, the petitioner's conviction became final on February 13, 1992.' The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here. The petitioner sought post-conviction relief on fourteen occasions, the last being denied as untimely by the Superior Court on June 27, 2006 with an observation by the Court that on September 20, 2004, petitioner's ninth post-conviction petition was denied as untimely. Giving the petitioner the benefit of all doubt, his federal habeas petition challenging his See: P.R.App.P. 903 Case 2:06-cv-01086-MBC-RCM Document 4 Filed 08/21/2006 Page 4 of 11 conviction and sentence should have been filed by April 23, 1997. One of his latest denials of post-conviction relief occurred on September 20, 2004, with subsequent denials on grounds of untimeliness on January 28, 2005 and April 21, 2005.~ The instant petition was executed on August 14, 2006. Thus, combining the delay in initially seeking post-conviction relief with the delay in seeking relief here, far in excess of the one year period in which to seek relief has expired, and the petition here is time barred. Additionally, it should also be noted that there was no impediment created by state law which prevented the petitioner from raising the issues which he seeks to raise here; the grounds which the petitioner alleges in support of the instant petition are not "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review" and there is no factual basis for alleging a newly discovered claim. Thus, the instant petition is time barred. The petitioner is put on notice of this proposed recommendation and in the objection process can provide the Court with any appropriate response he deems appropriate as mandated by the decision in United States v. Bendoluh, 409 F.3d 522 (3d.Cir.2005), cert. Denied 126 S.Ct. 1908 (2006).. For this reason, it is recommended that the petition of for a writ of habeas corpus be dismissed, and that a certificate of appealability be denied. Id. The thirteenth post-conviction petition was dismissed on June 23,2005, because the petitioner was not longer serving the sentence challenged. Case 2:06-cv-01086-MBC-RCM Document 4 Filed 08/21/2006 Page 5 of 11 Within ten (10) days after being served, any party may serve and file written objections to the Report and Recommendation. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to file timely objections may constitute a waiver of any appellate rights. Respectfblly submitted, Dated: August 21,2006 sl Robert C. Mitchell, United States Magistrate Judge 08i21'00 0 8 : 4 0 FAX 4 1 2 3 5 0 7 1 1 1 . CLERK OF COURTS 1Document 4 ___-- ... Case 2:06-cv-01086-MBC-RCM - -- . Filed - 08/21/2006 @I Page 6 of 11 0 0 1 J. S31005/06 NOM-PRECEDENTIAL DECISION i *- SE f SUPERIOR COURT I.O.P. 65.37 I h " . COMMONWEALTH OF PENNSYLVANIA, ,( ' -INTHE SUPERIOR COURT OF PENNSYLVANIA . ' , ..i'': , !! . .. ?, ,', .. ..,..-"' .. " Appellee v. THOMAS DAVIS, Appellant I No. 1 8 4 1 - - ~ ~ r 2 Appeal from the PCRA 0rde1 entered August 26, 2005 in the Court of Common P k a s of Allegheny County, Criminal Division, a t No. CC 9100184, CC8904099. BEFORE: ORIE MELVIN, TODD and POFOVICH, MEMORANDUM: JJ. Appellant, Thomas Davis, appel~ls pro se from the order entered August 26, 2005 dismissing as untimel his fourteenth petition filed pursuant I 1 I FILED: June 27, 2006 to the Post Conviction Relief Act (PCR!~), 42 Pa.C.S.A. affirm. 55 9541-9546. We In the context of a prior appeal ;am the dismissal of Appellant's ninth PCRA petition, this Court explained thai ! [o]n May 3, 1991, a jury found i:~ppellant]guilty of two counts of robbery a t each of Nos. CG 8904099 and 9100184. On January 14, 1992, he was senterced to an aggregate term of 14 to 28 years' imprisonment. Appellant did not file a direct appeal, but filed a series of unsuccessful ~CFIA petitions. . . . 6=ommonwealfh v. Davis, No. 520 WDA 2004 (judgment order entered 9/20/04, affirming dismissal of Appell;int's ninth PCRA petition as untimely and noting that Appellant had invokec~no exception t o the PCRA time-bar, but merely maintained his innocent?), Certified Record (C.R.) at 128. _ _ - - Case 2:06-cv-01086-MBC-RCM -- 08/21/00 08:41 FAX 512 350 7111 -.--I----.- Document 4 CLERIC OF COURTS Filed 08/21/2006 @I Page 7 of 11 002 Subsequently, Appellant filed four rnotil~ns which were treated as his tenth, 1 eleventh, twelfth and thirteenth PCRA petitions. Each one was dismissed. See C.R. a t 130 (order dated 1/28/05, dismissing tenth and eleventh PCRA petitions as untimely), C.R. a t 135 (order dated 4/21/05, dismissing twelfth I PCRA petition as untimely); C.R. at 199 (order dated 6/23/05, dismissing thirteenth PCRA petition because.Appellant was no longer serving a sentence i for the referenced offense). Although Appellant filed a timely appeal from the order of April 21, 2005, he later witidrew that appeal. On June 30, 2005, Appellant, actlog pro se, filed a 'Motion for Leave to File Post Conviction Petition," which t(e PCRA court properly treated as his fourteenth PCRA petition. The PCRA of its intention to dismiss the peti issued notice on August 5, 2005 as untimely without a hearing, pursuant to Pa.R.Crirn.P. 907. iDn iugust 17, 2005, Appellant filed an ! J "Objection to Lack of Jurisdiction." On August 26, 2005, the PCRA court entered the order dismissing Appellant's fourteenth PCR4 petition as untimely. This timely pro se appeal fo(,owed. Appellant raises one issue for our review: I Did the court below ignore and/& misapply law to fact pursuant to 42 Pa.C.S.A, 5 9545(b)(l)(i) j'rrisdiction? Appellant's Brief, a t 2. This Court's standard of review regarding an order dismissing a petition under the PCRA i whether tfre determination of the PCRA court is s supported by the evidence of record and is free of legal error. -- 08/21/OG 08:41 F.4.X 112 350 7111 Case 2:06-cv-01086-MBC-RCM ...-----., CLERK-.A_. -- 08/21/2006 OF 4 DocumentCOURTS Filed ---- Page 8 of 11 I Commonwealth v. Halley, 582 Pa. lij4, 169 n.2, 870 A.2d 795, 799 n.2 (2005). The PCRA court's findings will1 not be disturbed unless there is no support for the findings in the certifie~record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2011). i I I Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). I I The timeliness of a PCRA petjtion is jurisdictional. Commonwealth v. Murray, 562 Pa. 1, 5, 753 A.2d 201, '203(2000). Generally, a petition for relief under the PCRA, including a sedonci ' or subsequent petition, must be filed within one year of the date the judgment of sentence is final unless the petition alleges, and the petitioner probes, that an exception to the time for filing the petition, set forth at 42 Pa.C. S.A. I 5 9545(b)(l)(i), (ii), and (iii), is met. See Commonwealth v. Gambi2a-Taylor, 562 Pa. 70, 76, 753 A.2d 780, 783 (2000); 42 Pa.C.S.A. requirement are: 5 95115. The exceptions to the timeliness I (i) the failure to raise the cliirn previously was the result of interference by gove(nment officials with the presentation of the claim in v,olation of the Constitution or laws of this Commonwealth clr the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown t o the petitioner and could not have been ascertained by the exercise 01 due diligence; or Case 2:06-cv-01086-MBC-RCM Document 4 Filed 08/21/2006 Page 9 of 11 Case 2:06-cv-01086-MBC-RCM Document 4 Filed 08/21/2006 Page 10 of 11 Case 2:06-cv-01086-MBC-RCM Document 4 Filed 08/21/2006 Page 11 of 11

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