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LEWIS v. VAUGHN

March 15, 2004.

ANTHONY EEWIS [AY-5718]
v.
DONALD T. VAUGHN, et al



The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge

REPORT AND RECOMMENDATION

Presently before this Court is a pro se petition for writ of habeas corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution ["SCI"] Pittsburgh, Pennsylvania, where he is serving a life sentence for murder. For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed as untimely under 28 U.S.C. § 2244(d)(1).

BACKGROUND*fn1

  On July 2, 1984, following a jury trial before the Honorable Edwin S. Maimed of the Philadelphia County Court of Common Pleas, Petitioner was convicted of first degree murder, simple and aggravated assault, and possession of an instrument of crime for the shooting death of James Brown and the wounding of James Patterson. The jury found both aggravating and mitigating circumstances and fixed the penalty for the murder charge as life imprisonment. See "Response To Petition For Writ of Habeas Corpus" [Docket Entry No. 8]:*fn2 Exhibit "A" (December 5, 1986 Superior Court Opinion) at p. 1.

  The facts underlying Petitioner's convictions were described by the Superior Court as follows:
"On December 19, 1982, the Appellant [Petitioner] became involved in an argument with James Patterson, while a patron at the Quaker City Golf Club. Patterson and the Appellant were evicted from the club. The Appellant was escorted from the premises first. The Appellant immediately obtained a handgun and fired at Patterson as he was guided from the club. The shot wounded Patterson in the leg, accidentally killing an innocent bystander, James Brown.
In a preliminary hearing, the District Attorney's Office elicited testimony from Patterson about the altercation. At the time, opposing counsel was given a fair and complete opportunity to examine the witness.
At trial three disinterested witnesses testified, identifying the Appellant as the shooter. Appellant's father testified that neither his son nor any of the family carried guns. Thereafter, the prosecutor introduced evidence of a prior conviction showing that Appellant had a gun. The evidence was admitted, allegedly, for the purpose of impeaching the father as a witness. However, the evidence was also used to discredit the character of the Appellant. The prosecution was also granted permission to read the notes from the preliminary hearing because Patterson was unavailable for trial. The prosecution established, to the satisfaction of the court, that they made a good faith effort to produce Patterson for trial, but failed. The preliminary hearing District Attorney testified explaining the circumstances behind the necessity for admission of Patterson's testimony."
See Commonwealth's Response: Exhibit "B" (August 24, 1990 Superior Court Opinion) at pp. 1-2.
  On September 23, 1985, after an evidentiary hearing, Judge Maimed denied post-verdict motions, and imposed the mandatory life sentence, plus a consecutive term of two and one-half to five years for assault and a concurrent term of two and one half to five years for the weapons offense. See Commonwealth's Response: Exhibit "A" (December 5, 1986 Superior Court Opinion) at p. 1. Petitioner filed a direct appeal to the Pennsylvania Superior Court, asserting the following claims:
1. "Did trial counsel render the Appellant ineffective assistance of counsel when he failed to impeach Commonwealth witness, James Patterson, with his prior conviction for robbery?"
2. "Did the trial court err when it permitted the prosecution to introduce evidence of the Appellant's prior conviction for violations of the Uniform Firearms Act, 18 Pa. C.S.A. § 6100 et seq?"
3. "Did trial counsel render the Appellant ineffective assistance of counsel when he failed to request a cautionary instruction regarding Appellant's prior conviction and whether post-trial counsel was ineffective in failing to preserve the issue for appeal?"
4. "Did the trial court err when it failed to conduct a voir dire of jurors who might have seen the Appellant while he was in handcuffs?"
Id. at p. 2.
  The Superior Court, adopting the trial court's analysis on the first two issues, rejected the first three issues on the merits. It determined that the four issue had not been properly preserved and declined review. See Commonwealth's Response: Exhibit "A" (December 5, 1986 Superior Court Opinion) at pp. 2-3.

  Petitioner sought discretionary review in the Supreme Court of Pennsylvania. Allocatur was denied on August 4, 1987. See Commonwealth's Response: Exhibit "C" (July 9, 1999 Superior Court Opinion) at p. 2.

  On August 31, 1987, Petitioner submitted his first pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ["PCRA"], 42 Pa.C.S.A. § 9541 et seq. Counsel was appointed; he filed an amended PCRA petition on May 31, 1988. See State Court Record at "D-16" and "D-17."

  In an Opinion and Order dated October 30, 1989, the Court denied PCRA relief. See State Court Record at "D-22." Petitioner filed an appeal from the denial of PCRA relief to the Pennsylvania Superior Court. On appeal, he raised the following issues:
1. Trial counsel was ineffective for failing to move for a limiting instruction on Appellant's prior conviction for carrying a gun without a license.
2. Trial counsel was ineffective for failing to object to certain allegedly prejudicial remarks made by the prosecutor in closing argument.
3. Trial counsel was ineffective for failing to interview and call the Appellant's mother at trial as an alibi witness.
4. Trial counsel was ineffective for failing to object to the admission of testimony by the district attorney present at the preliminary hearing.
See Commonwealth's Response: Exhibit "B" (August 24, 1990 Superior Court Opinion) at pp. 3-7.

  In an August 24, 1990 Opinion, the Superior Court rejected all claims, concluding that they were waived, previously litigated and/or meritless. Id.

  Petitioner sought discretionary review in the Pennsylvania Supreme Court. On March 12, 1991, the Supreme Court denied allocatur. See Commonwealth's Response: Exhibit "C" (July 9, 1999 Superior Court Opinion) at p. 2.

  On July 25, 1994, Petitioner filed a second PCRA petition. It was denied, without appointment of counsel and without a hearing, on October 21, 1994. Id.

  On March 31, 1998, Petitioner filed his third PCRA petition. It was denied by Order dated May 28, 1998. See Commonwealth's Response: Exhibit "C" (July 9, 1999 Superior Court Opinion) at p. 2. Petitioner appealed the dismissal of his third PCRA petition to the Superior Court. On appeal, he raised the following issues:
1. "Whether the second or subsequent Post Conviction Hearing Act Petition should be dismissed by the Court without a hearing to determine if the petitioner (sic) issues raises (sic) a strong prima facie showing that a miscarriage of justice may have occurred."
2. "Whether the Court erred when it dismissed Petitioner (sic) pro se Post Conviction Hearing Act petition due to delay in filing and without a hearing on a Commonwealth motion to dismiss."
3. "Whether `After-discovered evidence' evidence (sic) which subsequently became available (via Philadelphia District Attorneys Office) after the trial and could not have been obtained by any of the attorneys who formerly represented Petitioner through the exercise of reasonable diligence; is not merely corroborative or cumulative and/or used for impeachment of any witness; and is of such a nature and character that a different verdict in the case would likely result if a new trial is granted."
4. "Whether `After-discovered evidence' evidence of prosecutorial misconduct relating to systematic race-based exclusions of African Americans and women from the jury selection process violates black criminal defendants (sic) rights to be tried by a fair and impartial jury."
Id. at pp. 2-3.
  By Memorandum and Order dated July 9, 1999, the Superior Court affirmed the PCRA Court, determining that Petitioner was not entitled to PCRA relief because his third habeas petition was untimely under 42 Pa.C.S. § 9545. See Commonwealth's Response: Exhibit "C" (July 9, 1999 Superior Court Opinion) at p. 7.

  It is undisputed that Petitioner did not seek allowance of appeal in the Pennsylvania Supreme Court. See Petitioner's Reply to the Commonwealth's Response [Docket Entry No. 12] at p. 3 ¶ 8 On July 13, 2003, Petitioner signed and dated the instant habeas petition. It was filed in ...


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