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).
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
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"
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
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.
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
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 ...