The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
Presently before the Court are the Report and Recommendation of
United States Magistrate Judge Arnold C. Rapoport and objections thereto
filed by pro se, Petitioner Lucius Shaird ("Petitioner"), who
is currently incarcerated at the State Correctional Institute at Albion,
Pennsylvania. Petitioner was convicted of murder in the first degree,
possession of an instrument of crime ("PIC"), aggravated assault, and
simple assault and recklessly endangering another person. Petitioner was
then sentenced to an aggregate term of life imprisonment for these
On December 20, 2002, Petitioner filed a Petition for a Writ of Habeas
Corpus with this Court, pursuant to 28 U.S.C. § 2254.*fn1 In
accordance with 28 U.S.C. § 636 and Local Rule of Civil
Procedure 72.1, the Court referred Petitioner's habeas corpus
petition for a Report and Recommendation to Magistrate Judge Rapoport,
who, on July 23, 2003, recommended that this Court dismiss Petitioner's
petition as untimely. On August 1, 2003, Petitioner filed his objections
to the Report and Recommendation.
For the following reasons, Petitioner's objections are
OVERRULED, Magistrate Judge Rapoport's Report and
Recommendation is APPROVED and ADOPTED, and
Petitioner's habeas corpus petition is DISMISSED as untimely.
A. State Court Proceedings
On January 14, 1997, Petitioner was convicted of the aforementioned
offenses after waiving his right to a jury trial, and being tried before
the Honorable C. Darnell Jones, II, in the Court of Common Pleas of
Philadelphia. On April 4, 1997, after denying post-verdict motions,
Judge Jones sentenced Petitioner to life imprisonment for first degree
murder with concurrent five to ten year terms of imprisonment for his
aggravated assault and PIC convictions.*fn2
Petitioner promptly filed a direct appeal on April 8, 1997 with the
Pennsylvania Superior Court (the "Superior Court"). On
February 10, 1999, the Superior Court affirmed Petitioner's conviction
in Commonwealth v. Shaird, 737 A.2d 812 (Pa. Super. 1999).
On August 17, 1999, the Supreme Court of Pennsylvania denied allocatur in
Commonwealth v. Shaird, 742 A.2d 674 (Pa. 1999).
Pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"),
42 Pa. Cons. Stat. §§ 9541-9551, Petitioner mailed his first pro
se, petition for post-conviction relief on January, 24, 2000 ("PCRA
I").*fn3 Petitioner was then assigned legal counsel, who subsequently
filed a no-merit letter in accordance with Commonwealth v.
Finley, 550 A.2d 213, 215 (Pa. Super. 1988).*fn4 On September
20, 2000, after an independent review of the merits, the PCRA court
agreed with counsel's Finley, letter that the
petition was meritless and dismissed Petitioner's first petition.
Petitioner, with new counsel, appealed this dismissal to the Superior
On March 6, 2001, while PCRA I was under review in the Superior Court,
Petitioner filed a second pro se, PCRA petition ("PCRA II").
On March 27, 2001, Judge Jones, acting as the PCRA court, dismissed PCRA
II for lack of jurisdiction because the appeal of PCRA I was still
pending in the Superior Court. Petitioner did not appeal Judge Jones'
disposition of PCRA II.
On July 30, 2001, the Superior Court affirmed the dismissal of PCRA I
in Commonwealth v. Shaird, 785 A.2d 1034
(Pa. Super. 2001). On February 6, 2002, the Supreme Court of Pennsylvania
denied allocatur for PCRA I.
Petitioner filed his final pro se, PCRA petition ("PCRA III")
with the PCRA court on March 16, 2002,*fn5 which was dismissed on May
30, 2002, as untimely filed. On June 25, 2002, Petitioner appealed PCRA
III to the Superior Court. On April 3, 2003, the Superior Court affirmed
the dismissal of PCRA III as untimely in Commonwealth v.
Shaird, 828 A.2d 403 (Pa. Super. 2003).
B. Proceedings in This Court
On December 20, 2002, Petitioner filed the instant Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts two
instances where he was denied due process under the Fourteenth Amendment
in his criminal case: (I) by his conviction of first degree murder in the
absence of evidence proving specific intent and (2) when the trial court,
during a bench trial presided over by Judge Jones, took additional
testimony after Judge Jones initiated deliberations. (Pet. at 9-10.),
The District Attorney of Philadelphia ("Respondent") responded that
Petitioner's claims ...