The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge
George V. Kubis, the petitioner, filed a pro se petition for
writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254
(2003). He argues that in violation of his due process rights, the
officers who testified against him at trial fabricated evidence; that the
prosecution withheld evidence that revealed the falsity of the officers'
testimony; that trial counsel was ineffective for failing to raise the
issue of a suggestive photographic line-up; and that all subsequent
counsel were ineffective because they failed to raise these issues (Doc.
#1). After conducting a de novo review of Magistrate Judge Welsh's
findings and recommendations, I have determined that Kubis' petition
should be dismissed.
Following a jury trial in the Montgomery County Court of Common Pleas
petitioner was convicted on January 20, 1995 of two counts of robbery,
two counts of theft of movable property
and two counts of possessing an instrument of crime with intent to
employ it criminally.*fn1 Petitioner was sentenced on July 20, 1995 to
six to thirteen years imprisonment, followed by two years of probation.
The petitioner's charges stemmed from the robberies of two separate gas
stations in Montgomery County, Pennsylvania, on two consecutive nights in
September 1993. A Sunoco gas station was robbed on September 12 and an
Atlantic gas station was robbed on September 13; both stations were
robbed at knifepoint. On September 17, two police officers spotted a car
matching a description of the thief's car at a third gas station. The
officers testified that a gas station attendant ran from that store
screaming that he was about to be robbed. Petitioner then exited the
store and entered his car. Petitioner was arrested because police
suspected him of driving under the influence after observing his
Petitioner filed a timely direct appeal of his judgment of sentence to
the Superior Court of Pennsylvania on August 18, 1995, alleging
twenty-one grounds of error. On October 18, 1996, the trial judge filed
an opinion affirming the conviction. Doc. #10, Exhibit B. Petitioner's
motion for a new trial was denied by the trial court on February 12,
1997, after a hearing, held November 19, 1996.*fn3 Doc. #10, Exhibit C.
The Superior Court of Pennsylvania affirmed the petitioner's
sentence on April 11, 1997.*fn4 Doc. #10, Exhibit D. Petitioner
then sought reargument in the Superior Court, which denied his request on
June 23, 1997. Doc. #10, Exhibit K ¶ 3. The petitioner did not file a
petition for allowance of appeal (allocatur) in the Supreme Court of
Pennsylvania; however, in December 1997,*fn5 the petitioner submitted a
nunc pro tunc allocatur petition to the Supreme Court of
Pennsylvania.*fn6 According to the petitioner, the nunc pro
tunc allocatur petition was denied on April 1, 1998.
On March 31, 1999, with the help of his attorney, Theodore
Thompson,*fn7 Kubis filed a petition under Pennsylvania's
Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann § 9541
et seq., and then almost a year later filed an amended PCRA
petition on March 14, 2000 with the help of Paul Bauer, alleging the
following broad grounds: 1) trial counsel (Mullaney) was ineffective for
failing to preserve the issue of prosecutorial misconduct; 2) appellate
counsel (Thompson) was ineffective for failing to raise, preserve and
argue trial counsel's ineffectiveness; and 3) appellate counsel was also
ineffective for failing to object to, raise, preserve and argue the
misconduct of the trial court, trial counsel and prosecutor.*fn8 Doc.
#10, Exhibit E ¶¶ 10-12. Neither PCRA petition discussed the
timeliness of the petition.
After oral argument, Judge Maurino J. Rossanese, Jr., granted the
Commonwealth's motion to dismiss the petition for post-conviction relief
on April 27, 2000 because of its untimeliness. Doc. #10, Exhibits I and
J. Petitioner's then-counsel, Bauer, sent a letter to petitioner
notifying him of his right to appeal, but the petitioner did not receive
this letter because he was being moved to another prison. As a result,
petitioner failed to file a timely appeal. On September 21, 2000, the
court granted Bauer's petition to withdrawal as court-appointed counsel
at petitioner's request; the court also granted petitioner the right to
appeal nunc pro tunc the April 27, 2000 order that dismissed his
PCRA petition. Doc. #10, Exhibit J at 2.
Appellant filed an appeal on October 23, 2000 to the superior court in
which he argued
that 1) he filed his March 31, 1999 petition within one year of the
date that his judgment became final; 2) that even if he did not comply
with this deadline, his petition falls within the after-discovered
evidence exception; 3) that he did not receive effective assistance of
counsel in preparing that petition; and 4) that the court erred in
failing to appoint counsel on the instant appeal. Doc. #10, Exhibit K
(citing Petitioner's Brief at 3). On September 19, 2002, the superior
court affirmed the denial of post-conviction relief because the PCRA
petition was untimely. Doc. #10, Exhibit K. The petitioner then sought an
allowance of appeal from the Supreme Court of Pennsylvania,*fn9 which
was denied without explanation on December 19, 2002. Doc. #10, Exhibit L.
On March 10, 2003, petitioner filed this petition for writ of habeas
corpus (Doc. #1).*fn10 Petitioner asserts a number of substantive
grounds for habeas relief. First, Kubis claims that the police fabricated
evidence concerning witness Talbot Morgan,*fn11 the gas station
attendant who was on duty at the Exxon station the night that petitioner
was arrested. The officers testified that a gas station attendant ran
from the Exxon on the night of September 17, 1993, screaming that he was
about to be robbed; however, based on a private investigator's reports of
October 1998 and November 1998, Kubis argues that this testimony was
fabricated. The investigator that Kubis hired reported that Morgan said
he did not run out of the station with his hands in the air screaming
that he was going to be robbed. According to the report, Morgan stated
that he has
never had anyone attempt to rob the station during his shift. Kubis
contends that the prosecution relied on the officer's allegedly false
testimony to establish probable cause and to obtain a conviction. Kubis
also avers that the prosecutor, knowing the officers' testimony to be
false, withheld exculpatory evidence concerning Morgan. Additionally,
Kubis claims that trial counsel was ineffective for failing to raise the
issue of a suggestive photo-lineup and that all subsequent counsel were
ineffective for not raising these issues.
On June 2, 2003, the District Attorney for Montgomery County filed an
answer to the habeas petition, arguing that none of the petitioner's
claims are exhausted pursuant to 28 U.S.C. § 2254(c) (Doc. #9).
Respondent argues that because petitioner has failed to properly raise
these issues in the state courts, all of his claims are procedurally
defaulted.*fn12 Respondent's Answer ¶ 19-20. In answering the
petition, the respondent also raised the defense that the AEDPA imposes a
one-year statute of limitations on applications for a writ of habeas
corpus. Id. at 13. On June 6, 2003, Magistrate Judge Diane M.
Welsh filed a report and recommendation (Doc. #11), which found that all
of petitioner's claims were procedurally defaulted and recommended that
the petition be dismissed and a certificate of appealability not be
granted with respect to any of the petitioner's claims.
On June 13, 2003, the petitioner, having not yet received the report
and recommendation, filed a reply to respondent's answer (Doc. # 12).
Therein, petitioner argued that he timely filed his PCRA petition because
the judgment was not final until April 1, 1998, when the Supreme Court
of Pennsylvania denied petitioner's allowance of appeal. He also
argued that he was "not afforded the right to be present at his PCRA
hearing," that his appellate counsel abandoned him, and that petitioner
was never given an evidentiary hearing and was not able to make an
argument defending the timeliness of the PCRA petition. Reply at 6-7.
On June 26, 2003, having received the report and recommendation,
petitioner then filed a motion for reconsideration of the report and
recommendation (Doc. # 13). Magistrate Judge Welsh addressed the
petitioner's motion for reconsideration and filed a supplemental report
and recommendation, dated July 22, 2003 (Doc. #14), which again
recommended dismissal of petitioner's writ of habeas corpus.
On August 6, 2003, petitioner filed his objections to the report and
recommendation. Petitioner's Objections, Doc. #15. Petitioner argues that
he filed his petition for allowance of appeal nunc pro tunc with
the Supreme Court of Pennsylvania in December 1997 under "extraordinary
circumstances and impediment," and that petitioner missed the July 23,
1997 deadline for filing allocatur with the state supreme court because
of his attorney's "fraudulent misrepresentations"; petitioner argues that
his attorney falsely assured him ...