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SHAIRD v. WOLF

February 26, 2004.

LUCIUS SHAIRD, Petitioner,
v.
WILLIAM J. WOLF, Respondent



The opinion of the court was delivered by: JAMES KELLY, Senior District Judge

MEMORANDUM AND ORDER

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 convictions.

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 Page 2 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.

  I. PROCEDURAL HISTORY

 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 Page 3 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 Page 4 petition was meritless and dismissed Petitioner's first petition. Petitioner, with new counsel, appealed this dismissal to the Superior Court.

  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). Page 5

 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 ...


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