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Simmons v. Commonwealth

March 26, 2007

RICHARD MICHAEL SIMMONS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, ET. AL, RESPONDENTS



The opinion of the court was delivered by: Judge Jones

Magistrate Judge Blewitt

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

On April 24, 2006, Petitioner Richard Michael Simmons ("Petitioner") an inmate at the State Correctional Institution at Dallas ("SCI-Dallas") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition"). (Rec. Doc. 1). Petitioner challenges a 1995 third degree murder conviction in the Franklin County Court of Common Pleas ("CCP").

On February 26, 2007, Magistrate Judge Blewitt issued a Report and Recommendation (doc. 10) recommending that the Petition be dismissed because it is untimely pursuant to 28 U.S.C. § 2244(d)(1)(A). Objections to the Magistrate Judge's report were due by March 15, 2007, and to date none have been filed. Therefore, this matter is ripe for our review.

PROCEDURAL HISTORY

In the Petition, Petitioner challenges the aforementioned 1995 third degree murder conviction in the Franklin County CCP. Petitioner raises the following four grounds in the Petition: (1) Prosecution prohibited by virtue of his conviction under a repealed Pennsylvania Constitution of 1873; (2) No provision for criminal code in Pennsylvania Constitution of 1873 or 1968; (3) Lack of jurisdiction by state court; and (4) Pennsylvania legislature unconstitutionally gave the Pennsylvania Supreme Court legislative power in the Pennsylvania Constitution of 1968. (Rec. Doc. 1, p. 1-4). Petitioner also asserts that his conviction and sentence were unconstitutional based on the above stated grounds. (Rec. Doc. 1, p. 1).

Before serving the Petition on the Respondents and addressing the merits of Petitioner's claims, on August 30, 2006, Magistrate Judge Blewitt directed Petitioner to submit to the Court copies of all of his state court appeals and the state court decisions, opinions, and orders regarding both his direct and collateral appeals, along with the filing dates thereof.*fn1 Magistrate Judge Blewitt indicated that he would then determine if the Petition was timely filed under the AEDPA,*fn2 and if it was, whether his instant claims were exhausted in the state courts.*fn3 (Rec. Doc. 3).

On September 11, 2006, Petitioner filed what was presumably his Response to Magistrate Judge Blewitt's August 30, 2006 Order. (Rec. Doc. 4). Petitioner's filing did not contain any of the information that Petitioner was directed to supply to the Court. On September 25, 2006, Magistrate Judge Blewitt then directed the Franklin County District Attorney ("DA") to respond to the Petition regarding the statute of limitations and exhaustion issues within fifteen days. (Rec. Doc. 6). Petitioner was afforded an opportunity to then file a traverse. On October 16, 2006, Respondent DA filed his Response as directed, with attached exhibits. (Rec. Doc. 8). Petitioner did not file a traverse.

In the Response, Respondents argued that Petitioner's one-year AEDPA statute of limitations had expired, and moved to dismiss the Petition. Respondents further argued that Petition was subject to dismissal because the Petitioner did not exhaust state remedies.*fn4

FACTUAL BACKGROUND

On May 1995, Petitioner, pursuant to a plea agreement, entered a plea of nolo contendere to third degree murder, in connection with the slaying of his paramour, Shawn Reitz, which occurred on January 12, 1989. On June 28, 1995, the Franklin County CCP imposed a prison sentence of from ten to twenty years, a fine of five thousand dollars, and restitution to the victim's parents for funeral related expenses.

On July 7, 1995, Petitioner filed a "Motion to Modify Sentence" with the CCP, which was denied by order dated July 10, 1995. The Petitioner appealed this denial on July 27, 1995 to the Superior Court. On August 19, 1996, the Superior Court considered the Petitioner's appeal of the CCP's July 10, 1995 order. The Superior Court affirmed the CCP's order and the Petitioner's judgment of sentence. Petitioner then timely filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court on September 18, 1996. On May 23, 1997, the Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of Appeal. There are no further records that Petitioner filed any additional state appeals, namely a collateral appeal via a PCRA petition, with respect to his challenged sentence for the conviction at issue herein. Therefore, since ...


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