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Gale v. Rozum

July 25, 2006

ANDRE M. GALE, PETITIONER,
v.
GERALD ROZUM, RESPONDENT.



The opinion of the court was delivered by: Richard P. Conaboy United States District Judge

Judge Conaboy

Memorandum and Order

Before the Court is Andre M. Gale's ("Petitioner") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks habeas relief based on ineffective assistance of counsel pursuant to the standard outlined by the United States Supreme Court in Strickland v. Washington, 104 S.Ct. 2052 (1984). After reviewing Petitioner's claim, we find that his petition is untimely and should be dismissed. Therefore, the instant Petition for Writ of Habeas Corpus need not be served on the named Respondent.

I. Background

In March of 1996, Petitioner was convicted by a jury of first degree murder and criminal conspiracy in the death of fourteen year old Samuel Hicks. (Doc. 1 at 14). Hicks was shot and killed in Harrisburg, Pennsylvania. (Id.). Thereafter, Petitioner was sentenced to life imprisonment in the Dauphin County Court of Common Pleas. (Id.). Petitioner appealed his sentence to the Pennsylvania Superior Court where the judgment was affirmed on June 11, 1997. (Id.). Petitioner then appealed to the Supreme Court of Pennsylvania and allocatur was denied on October 28, 1997. (Id.). On September 15, 1998, Petitioner's P.C.R.A. action for ineffective assistance of counsel was denied by the Dauphin County Court of Common Pleas. (Id. at 15).

In January of 2000, Petitioner filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. (Case No. 00-cv-00163; hereinafter "Gale 1"). On August 21, 2000, Petitioner filed a motion to dismiss his case. (Gale 1; Doc. 6). On August 28, 2000, this Court granted Petitioner's motion and dismissed the case. (Id.; Doc. 8). In our order dismissing the case, we provided Petitioner with 120 days from the date of the order to file a new all-inclusive § 2254 petition. (Id.). On December 21, 2000, Petitioner's case was officially closed because Petitioner failed to re-file his § 2254 petition. (Gale 1; Doc. 9).

On June 26, 2006, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to § 2254. (Doc. 1). Again, Petitioner claims ineffective assistance of counsel and actual innocence. (Id.).

II. Discussion

A. Statute of Limitations

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L.No. 104-132, 110 Stat. 1214 (April 24, 1996). The AEDPA amended 28 U.S.C. § 2244 by adding a new subsection (d) which imposes a one-year period of limitation on state prisoners filing habeas petitions in federal court. Under § 2244(d)(1)(A), the statute of limitations begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." A judgment of sentence is final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review."

42 Pa.C.S. § 9545(b). The Court of Appeals for the Third Circuit has held that a petition filed within one year of the effective date of the AEDPA is timely. Burns v. Morton, 134 F.3d 109 (3d Cir. 1998).

Here, Petitioner's last P.C.R.A. petition was denied by the Dauphin County Court of Common Pleas on September 15, 1998. (Doc. 2 at 3). His first Petition for Writ of Habeas Corpus was filed in this Court on January 27, 2000, more than a year after the final P.C.R.A. decision. (Gale 1; Doc. 1). Petitioner filed the instant petition on June 26, 2006, more than six years after the initial filing and more than five years after we dismissed his first claim. Clearly, the instant petition was not timely filed. Therefore, we will analyze whether any circumstances exist so that the statute was tolled.

B. Successive Filings

28 U.S.C.A. § 2244(b)(2) states that a claim presented in a second or successive habeas corpus application under § 2254 that was not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to ...


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