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Newill v. Kelchner

October 17, 2007

KURTIS BLAKE NEWILL. CD-9044, PETITIONER,
v.
DONALD KELCHNER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Mitchell, M.J.

OPINION AND ORDER

Kurtis Blake Newill, and inmate at the State Correctional Institution at Fayette has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons that follow the petition will be dismissed as having been untimely filed. Additionally, a certificate of appealability will be denied as no viable grounds exists upon which a reasonable jurist could conclude that there is a basis for appeal.

Newill is presently serving a seven to fourteen year sentence imposed, following his conviction upon a plea of nolo contendere to charges of aggravated assault, recklessly endangering another person, simple assault, and resisting arrest at No. 89 of 2005, in the Court of Common Pleas of Fayette County, Pennsylvania. This sentence was imposed on March 28, 2005.*fn1 No appeal was filed.*fn2

On November 13, 2006, Newill filed a "Motion to Modify Sentence or Re-Instate Defendant's PCRA Rights" which was dismissed on December 19, 2006*fn3 .

An appeal was taken to the Superior Court which Court held on August 13, 2007 that the above submission should have been treated as a PCRA petition and as such was untimely.*fn4

In the instant petition which was executed on September 12, 2007, Newill contends he is entitled to relief on the following grounds:

I. Petitioner's 14th Amendment Due Process rights were violated when the court below denied his access to his plea, sentencing, PCRA withdrawal transcripts, and counsel's files, which precluded him from raising any claim that his rights were violated in those proceedings.

II. Petitioner's Sixth Amendment rights to the effective assistance of counsel were violated when plea and sentencing counsel failed to present evidence that at the time of the offense petitioner was acting under the mental illnesses of compulsive paranoid schizophrenia and psychotic depressive disorders in mitigation of a lesser sentence.

III. Petitioner's 14th Amendment due process rights were violated when the plea-sentencing court failed to take into consideration that at the time of the crime petitioner was suffering from the mental illnesses of compulsive paranoid schizophrenia and psychotic depressive disorders in mitigation of a lesser sentence.

IV. The opinion below is polluted with errors regarding what and when petitioner's PCRA etc., motions were filed. And is an exercise in contradictions. It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:

(1) A 1-year period of limitation shall apply to the 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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...


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