COLEMAN v. SOBINA et al

Filing 19

MEMORANDUM ORDER. 4 Petition for writ of habeas corpus is DISMISSED. A certificiate of appealability is DENIED. 14 Report and Recommendation is ADOPTED as the Opinion of this Court. Signed by Judge Arthur J. Schwab on 11/22/11. (eca)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BLAINE E. COLEMAN,
Petitioner,

v.
RAYMOND SOBINA, et at.,
Respondents.

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Civil Action No. 10-1128
Judge Schwab
Magistrate Judge Eddy

MEMORANDUM ORDER
Blaine E. Coleman ("Petitioner") is a state prisoner who currently is incarcerated at the
State Correctional Institution at Albion, Pennsylvania ("SCI-Albion"). Before this Court is
Petitioner's petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, in which
Petitioner attacks his 1997 criminal convictions in the Court of Common Pleas of Mercer

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County, Pennsylvania, of one count of attempted first-degree murder, 18 Pa. Cons. Stat. Ann.

§ 901, two counts of aggravated assault, 18 Pa. Cons. Stat. Ann. § 2702, two counts of recklessly
endangering another person ("REAP"), 18 Pa. Cons. Stat. Ann. § 2705, and one count of
conspiracy to commit first degree murder, 18 Pa. Cons. Stat Ann § 903, for his involvement in
the shooting of several people on November 25,1995. (Doc. 12-81 at 1-2).
This matter was referred to a United States Magistrate Judge for pretrial proceedings in
accordance with the Magistrates Act, 28 U.S.C. § 636(b)(I), and Rules 72.C and 72.D of the
Local Rules for Magistrate Judges. The Magistrate Judge issued a report and recommendation
on October 7,2011, recommending that this case be dismissed as facially untimely, and that a
certificate of appealability be denied. (Doc. 14 at 11-12).
Petitioner timely filed objections on November 18, 2011. (Doc. 18). The crux of

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Petitioner's argument is that his Notice of Intention to File Second Post Conviction Relief Act
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Petition Pursuant to Newly Discovered Evidence ("Notice"), see (Doc. 12-80), qualifies as a
properly filed application for state post-conviction review, pursuant to 28 U.S.C. § 2244(d)(2).
(Doc. 18 at 2). Thus, according to his logic, he is entitled to statutory tolling of the limitations
period during the 28-day period between October 6, 2009, and October 29, 2009. Id.; see also
(Doc. 14 at 7). In support of this argument, Petitioner notes that a status conference was
scheduled in his case at the trial court for October 29, 2009 - after the Superior Court had
affinned the dismissal of his first PCRA petition on September 9, 2009, but before the filing of
the second PCRA petition on November 6, 2009. (Doc. 18,-r 7); see also (Doc. 12-1 at 43).
Tolling of this period of time would render his petition timely filed.
As the Magistrate Judge observed in her report, during the pendency of his appeal from
the denial of his first PCRA petition, Petitioner filed his Notice with the Court of Common Pleas
of Mercer County. (Doc. 12-80); (Doc 12-1 at 43). It is well established under Pennsylvania law
that a petitioner is barred from filing a successive petition for post-conviction relief with a trial
court while an appeal from the denial of a prior petition still is pending. Instead, a petitioner
must file such a petition within the applicable period of time after the resolution of the appeal.
See Commonwealth v. Lark, 746 A.2d 585, 586-87 (Pa. 2000). Indeed, Petitioner's counsel
conceded as much in the Notice. (12-80,-r,-r 6-7, 11-12). Thus, as a matter of Pennsylvania law,
Petitioner's Notice cannot qualify as a properly-filed state court petition under § 2244.
Additionally, while Petitioner is correct that the state court docket indicates that a status
conference was scheduled by the trial court prior to the filing of his second PCRA petition, see
(Doc. 12-1 at 43), it is noteworthy that he does not mention that it was cancelled the day before it
was to take place, and rescheduled for November 6, 2009

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the day on which his second PCRA

petition actually was filed with the trial court. Id. at 44. For these reasons, it is clear that
Petitioner is not entitled to statutory tolling of the 28-day period in question.
Finally, Petitioner does not argue that he should receive the benefit of equitable tolling,
nor does he allege facts that would make its application appropriate.
After de novo review of the pleadings and documents in the case, together with the report
and recommendation (Doc. 14), and Petitioner's objections thereto (Doc. 18), the following
ORDER is entered:

AND NOW, this 2~

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day of -" / 0 "...~

, 2011,

IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus (Doc. 4) is
DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Magistrate Judge's report and recommendation
(Doc. 14) is adopted as the Opinion of this Court.

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cc:
BLAINE E. COLEMAN
DS-6494
SCI Albion
10745 Route 18
Albion, PA 16475

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RJ. SCHWAB
ED STATES DISTRICT JUDGE