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PETERSON v. ROSEMEYER

April 20, 2004.

ROBERT PETERSON, Petitioner,
v.
FREDRIC A. ROSEMEYER, et al, Respondents



The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge

REPORT AND RECOMMENDATION

Now pending before this court is a Petition for Writ of Habeas Corpus, filedpursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State CorrectionalInstitution at Laurel Highlands, Pennsylvania. For the reasons which follow, it is recommendedthat the petition be denied and dismissed.

I. PROCEDURAL HISTORY

  On March 8, 1995, petitioner pled guilty to rape, two counts of aggravatedindecent assault, and corruption of minors.*fn1 Specifically, petitioner admitted to committingsexual assaults on his two and one half and nine year old daughters. On May 4, 1995, theHonorable Anthony R. Semeraro of the Delaware County Court of Common Pleas sentencedpetitioner to nine to eighteen years imprisonment for these offenses.

  Petitioner directly appealed his sentence to the Superior Court, arguing that it washarsh and excessive. On January 4, 1996, petitioner's sentence was affirmed, and his appeal denied.

  Petitioner then filed a petition under the Post Conviction Relief Act (PCRA), andan evidentiary hearing was held on June 21, 1996, before the Honorable Harry J. Bradley.*fn2 Petitioner testified that he had not knowingly, intelligently, and voluntarily entered his guiltyplea. Rather, petitioner claimed that he was merely following the directions of his attorney.Trial counsel testified to the contrary, arguing that petitioner, after having been read andexplained the guilty plea statement, chose to plead guilty to all charges under oath in open court.On February 4, 1997, the PCRA court denied the petition.

  Petitioner appealed the decision, which was later affirmed by the Superior Courton February 5, 1998. The court permitted appointed counsel to withdraw his representationunder Commonwealth v. Turner. 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988).

  Petitioner filed a second PCRA petition, pro se, on May 20, 1998. On June 30, 1998, the Honorable Judge Keeler dismissed the petition, and petitioner failed to file an appeal.

  Petitioner filed a third PCRA petition on November 19, 1998, claiming that hisguilty plea violated his constitutional rights and Criminal Rule of Procedure 319(a). Thispetition was also dismissed.

  The Superior Court affirmed the above dismissal on June 5, 2000. On November 21, 2000, the court denied petitioner's request to file a petition for allowance of appeal, nunc pro tunc, to the Pennsylvania Supreme Court.

  Petitioner filed a fourth PCRA petition on June 11, 2002. The Honorable Judge Keeler appointed counsel and then subsequently denied petitioner's request for relief.

  Petitioner executed his Petition for Writ of Habeas Corpus on February 2, 2004, setting forth the following claims:
(1) Petitioner's conviction was obtained through a coerced confession; and
(2) Petitioner's counsel was ineffective in that he failed to object to unlawfulevidence, assert due process, and call certain witnesses requested by petitioner.
  Respondent retorts that petitioner's Petition for Writ of Habeas Corpus was filedafter the one-year grace period subsequent to the effective date in 28 U.S.C. § 2244(d)(1) was exhausted, and thus, is untimely.

 II. TIMELINESS

  Notwithstanding petitioner's allegations of substantive grounds for relief, oneprocedural obstacle precludes federal review of those claims — timeliness. Under theAntiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
  (A) the date on which the judgment became final by the conclusion of directreview or the expiration of the time for seeking such review.*fn3 28 U.S.C. § 2244(d)(1) (1996). If direct review of a criminal conviction ended prior to thestatute's effective date, ...

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