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February 5, 2004.

George V. Kubis, Petitioner,
Kenneth Kyler, Respondent

The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge

Memorandum and Order

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 Page 2 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 behavior.*fn2

  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 Page 3 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. Page 4

  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 Page 5 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 Page 6 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 Page 7 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 ...

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