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RICHARDSON v. SHANNON

July 22, 2004.

DAVID ANTWON RICHARDSON, Petitioner
v.
R. SHANNON, et al. Respondents.



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

SUPPLEMENTAL REPORT AND RECOMMENDATION

On September 9, 2003, petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This court filed a Report and Recommendation in the above matter on March 22, 2004, recommending that the petition be denied and dismissed. On April 6, 2004, the district court approved and adopted said Report and Recommendation. Petitioner's Motion to Alter or Amend Judgment was received on April 26, 2004, and was subsequently granted by the Honorable J. Curtis Joyner. In light of petitioner's motion, Judge Joyner remanded the matter to this court for further review. For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed.

I. PROCEDURAL HISTORY

  On December 13, 1994, following a jury trial presided over by the Honorable John J. Poserina, Jr. of the Philadelphia County Court of Common Pleas, petitioner was convicted of two counts of aggravated assault and one count each of possession of an instrument of crime, recklessly endangering another person, and criminal conspiracy. The jury failed to reach a verdict with respect to the charge of murder. After being sentenced to ten to twenty years imprisonment for the above convictions, petitioner was retried on the murder charge before Judge Poserina. On July 21, 1995, the jury found petitioner guilty of first degree murder. Specifically, petitioner was found guilty of the drive-by killing of Gerald Smith. Three days later, on July 24, 1995, petitioner was sentenced to life imprisonment.

  Petitioner appealed to the Pennsylvania Superior Court, which affirmed his sentence on February 6, 1997. Commonwealth v. Richardson, 694 A.2d 1121 (Pa. Super. 1998). The Pennsylvania Supreme Court subsequently denied allocatur on August 8, 1997. Commonwealth v. Richardson, 549 Pa. 699, 700 A.2d 440 (1997).

  On January 11, 2000, petitioner filed a state court collateral petition under the Post Conviction Relief Act (PCRA). This petition was dismissed by the Court of Common Pleas on January 12, 2001,*fn1 and petitioner did not appeal.

  On September 4, 2001, petitioner filed a second PCRA petition. The petition was dismissed as untimely on March 1, 2002, and petitioner did not appeal.

  On May 14, 2003, petitioner filed a third PCRA petition. As a result of its untimeliness, it was dismissed on January 6, 2004, and petitioner did not appeal.

  Petitioner filed his Petition for Writ of Habeas Corpus on September 9, 2003, alleging that his conviction was in violation of the Double Jeopardy Clause of the United States Constitution. Respondent retorted that petitioner's Petition for Writ of Habeas Corpus was timebarred, and thus petitioner was not entitled to habeas review or relief.*fn2 This court issued a Report and Recommendation on March 22, 2004, finding the Petition for Writ of Habeas Corpus untimely. Petitioner filed objections, and on April 6, 2004, the Honorable J. Curtis Joyner approved the Report and Recommendation.

  On April 26, 2004, petitioner filed a Motion to Alter or Amend Judgment, alleging the following:
(1) In adopting the Report and Recommendation, the district court failed to consider that petitioner was not in custody of his life sentence until July 11, 2002;
(2) The district court erred in failing to consider petitioner's double jeopardy claim; and
(3) Petitioner is entitled to file an amended petition offering evidence that he was not in custody of his life sentence until July 11, 2002.
  Petitioner's motion was granted by Judge Joyner on April 29, 2004, and the matter was remanded to this court for further review and preparation of an Amended Report and Recommendation.

  As petitioner has not filed an amended petition, the claims before this court are those alleged in the Motion to Alter or Amend Judgment. Respondents have reviewed these claims, and argue that petitioner has failed to present sufficient evidence of equitable tolling to overcome the time bar. In the alternative, respondents allege that petitioner's double jeopardy claim is procedurally defaulted and without merit.

  II. TIMELINESS

  Notwithstanding petitioner's allegations of substantive grounds for relief, one procedural obstacle precludes federal review of his claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996: A 1-year limitation period 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 direct review 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 the statute's effective date, then under Third Circuit precedent, a prisoner has a one-year grace period subsequent to the ...

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