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Washington v. SCI-Coal Twp. Superintendent

April 4, 2006

DONALD L. WASHINGTON, PETITIONER
v.
SCI-COAL TWP. SUPERINTENDENT,: ET AL., RESPONDENTS



The opinion of the court was delivered by: James F. McCLURE, Jr. United States District Judge

MEMORANDUM AND ORDER

Background

Donald L. Washington, an inmate presently confined at the State Correctional Institution, Coal Township, Pennsylvania ("SCI-Coal Twp."), filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Service of the petition has not yet been ordered.

By Order dated December 7, 2005, Washington's motion for an enlargement of time in which to file a memorandum in support of his petition for writ of habeas corpus was granted. The Order also advised Washington of this Court's intention, upon preliminary review of the petition, to sua sponte raise the issue of whether his action is subject to dismissal as being time barred under 28 U.S.C. § 2244(d) . See United States v. Bendolph, 409 F.3d 155, 165, n. 15 (3d Cir. 2005) and United States v. Johnson, 2005 WL 3179985 * 1, n.2 (M.D. Pa. Nov. 29, 2005)(Vanaskie, C.J.).

Washington states that he was convicted of first degree murder, criminal conspiracy to commit aggravated assault, and recklessly endangering another person following a jury trial in the Dauphin County, Pennsylvania Court of Common Pleas. He was sentenced to a term of life imprisonment on December 29, 1993. Following a direct appeal, the Pennsylvania Superior Court affirmed Washington's conviction and sentence on July 18, 1994. On April 18, 1995, the Pennsylvania Supreme Court denied Petitioner's request for allowance of appeal. See Commonwealth v. Washington, 657 A.2d 490 (Pa. 1995)(Table).

On or about June 22, 1995, Washington sought relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"). His petition was denied by the trial court on January 15, 1997. An appeal to the Superior Court was denied on August 4, 1998. The Pennsylvania Supreme Court denied his request for allowance of appeal on March 23, 1999. See Commonwealth v. Washington, No. 678 M.D. Alloc. 1998, 1999 WL 160567 (Pa. 1999)(per curiam).

A second PCRA action filed by Washington on May 10, 1999 was unsuccessfully litigated in the Pennsylvania state courts until January 22, 2001. See Commonwealth v. Washington, 766 A.2d 1248 (Pa. 2001)(Table). Approximately six (6) months later, on June 5, 2001, the Petitioner filed a third unsuccessful PCRA action. State court consideration of Washington's third PCRA proceedings concluded during December 2002.

Eight (8) months later, Washington filed a fourth PCRA action (in August, 2003). The Pennsylvania Supreme Court denied a petition for allowance of appeal with respect to the fourth PCRA action in December, 2004. Thereafter, the Petitioner waited a period of approximately eleven (11) months before initiating his present habeas corpus petition.

In his present action, Washington claims that he is entitled to federal habeas corpus relief based upon the following grounds of ineffective assistance of counsel: (1) counsel at his arraignment failed to request a pre-trial line up; (2) all subsequent counsel neglected to raise the lack of a pre-trial line-up issue; (3) trial counsel did not objecting to a suggestive in-court identification of the Petitioner; (4) appellate counsel failed to raise the identification issue; (5) trial counsel neglected to request a Kloiber instruction;*fn1 (6) appellate counsel did not raise the Kloiber issue. Washington also challenges his conviction on the grounds that he was subjected to an in-court suggestive identification and that Dwight Sutton, who is described as being a key Commonwealth witness, has recanted his testimony.

Discussion

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) amended the federal habeas statute by imposing a statute of limitations on prisoners requesting habeas corpus relief pursuant to 28 U.S.C. § 2254. Specifically, 28 U.S.C. § 2244(d)(1)-(2) provides, in relevant part, as follows:

(d)(1) A one-year period of limitations 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 for seeking such review

(d)(2) The time during which a properly filed application for State post conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. (emphasis added); see generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999).

In Bendolph, the Court of Appeals for the Third Circuit recognized that "courts have the power to raise the ADEPA limitations issue sua sponte in cases arising under ยง 2254. Bendolph, 409 F. 3d at 166 . The Court of Appeals added that "a court's exercise of its sua sponte powers should be limited" to the period when it undertakes preliminary consideration in accordance with Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Id. at 167. Since this Court is presently conducting its Rule 4 consideration, it is permissible to sua sponte raise the issue of whether the present matter is time barred. It is additionally noted that this Court's December 7, 2005 Order clearly ...


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