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January 4, 1995

ROY ALLEYN, Petitioner

The opinion of the court was delivered by: THOMAS I. VANASKIE

 On January 24, 1992, Roy Alleyn, a.k. a. Andrew Edward Muldowney, presently incarcerated at the State Correctional Institution, Smithfield, Huntingdon, Pennsylvania, filed the above captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His pro se petition challenges the validity of his 1988 conviction in the Court of Common Pleas of Monroe County, Pennsylvania, for arson and criminal mischief. Alleyn claims that insufficient evidence existed to convict him and that the jury would have held reasonable doubt about his guilt if it had been presented with evidence and argument that a delayed timing device could have started the fire for which he was convicted. *fn1"

 Careful review of the state court record compels the conclusion that the evidence was sufficient to convince a rational trier of fact of Alleyn's guilt. Thus, Alleyn is not entitled to habeas corpus relief based on the alleged insufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). With respect to Alleyn's claim based on the failure of the jury to be presented with evidence concerning a delayed incendiary device, Alleyn has not presented a truly persuasive demonstration of innocence, as the Supreme Court has suggested is required when a 'new evidence' claim is presented. See Herrera v. Collins, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993). *fn2" Thus, Alleyn's petition for habeas corpus relief on this ground must also be denied.


 The arson fire for which Alleyn was convicted occurred on February 28, 1988, burning to the ground a single-story house owned by Ralph and Theresa Vecchio in Minisink Hills, Monroe County, Pennsylvania. Volunteer firemen were individually notified of the fire by a "fire pager" and began to arrive at the scene shortly after 4:30 a.m. (Tr. at 28, 65.) Daniel J. Dorwart III, who worked as a security guard for Shawnee Stables, which was located near the scene of the fire, also learned from a fire pager that the Vecchio residence was on fire. (Tr. at 65.)

 The firemen and Dorwart independently observed footprints in the freshly fallen snow on the Vecchio property and the Shawnee Stables property. The firemen observed that two sets of footprints at the Vecchio property led away from the front porch of the residence and through a hole in a fence on the property. Dorwart observed that the set of footprints on the Shawnee stables property came from the scene of the fire. Dorwart tracked that set directly back to the scene of the fire. He also followed the prints away from Shawnee Stables, which led him to a bridge over a creek -- the Brodhead Creek bridge -- near the stables.

 Dorwart then returned to the fire scene and informed Frank Primrose, the fire chief, of the tracks. Primrose tracked the prints with another fireman from under the bridge across an open field and, ultimately, to railroad tracks, which the prints began to follow. Primrose then summoned the state police. Trooper Michael Hartley arrived on the scene at about 6:00 a.m. shortly thereafter, Primrose, Hartley, Trooper Harry Van Vliet, and fireman Douglas Witcraft continued tracing the tracks, which led them to "a small shanty that probably at one time had been a switch control or light control operation for the railroad when it operated." (Tr. at 256.)

 The tracks then left the railroad bed and proceeded in a westerly direction. After continuing to follow the tracks for a distance, the group observed a steel pipe which had smoke coming from it. The footprints to the pipe matched the prints they were tracking. The group found Alleyn in the pipe, and he was arrested.


 As noted above, Alleyn filed his petition on January 24, 1992. On June 3, 1992, the Monroe County District Attorney, by David W. Skutnik, filed a Response to Alleyn's Petition and a memorandum in support of the Response. (Dkt. Entry nos. 11-12.) The Pennsylvania Attorney General also filed a Response on June 3, 1992. (Dkt. Entry # 14.) Alleyn filed his Traverse on June 11, 1992.

 By Order dated August 6, 1992, Alleyn was directed to file "a full and complete copy of any and all habeas petitions he filed which are related to instant habeas petition." (Dkt. Entry # 16.) *fn3" The August 6, 1992 Order further provided that "the parties are to file the complete state court record, including all trial and appellate opinions, as well as any and all trial and appellate briefs." Supplementation of the record was to be accomplished within twenty (20) days. (Id.)

 On August 20, 1992, Alleyn responded to the August 6, 1992 Order, filing with this Court those parts of the state court record that were accessible to him. His response did not include the transcript of his state court trial. Although the Office of the District Attorney of Monroe County, through Attorney David W. Skutnik, had answered the habeas corpus petition on June 3, 1992, the District Attorney's Office did not respond to the August 6, 1992 Order. *fn4" The District Attorney of Monroe County now contends that it did not respond to the August 6, 1992 Order because the Order required submission of papers by "the parties" and by the "respondents," and the District Attorney's office was not a named respondent. *fn5" By Order dated June 6, 1993, counsel were directed to file status reports in this matter. (Dkt. Entry # 20.) Unfortunately, it appears that the Clerk did not cause the June 16, 1993 Order to be sent to the District Attorney's office for Monroe County. The Attorney General of Pennsylvania, however, was served with a copy of the June 15, 1993 Order and did submit a status report that was also sent to Assistant District Attorney Skutnik. (Dkt. Entry #22.) The Attorney General's Status Report indicated that Assistant District Attorney Skutnik had been attempting to locate the file in this matter. Receipt of the Attorney General's Status Report, as well as that filed by Alleyn, (Dkt. Entry #21), did not prompt any action from the Monroe County District Attorney. Thus, this matter remained dormant until March 1, 1994, when it was reassigned to me.

 On April 21, 1994, Alleyn filed a supplemental brief to his habeas corpus petition, indicating that "only the insufficient evidence issue is [now] being pressed." (Dkt. Entry # 24.) When a review of the record revealed that compliance with the August 6, 1992 Order had not been achieved, I issued an Order under date of June 22, 1994, directing the District Attorney of Monroe County to file, inter alia, the complete transcript of all trial proceedings held in connection with Alleyn's ...

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