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Marvin v. Menifee

December 19, 2007

DONALD W. MARVIN, PETITIONER,
v.
WARDEN FREDERICK MENIFEE, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

I. Introduction

Petitioner Donald Marvin, a former state inmate, currently housed at the Otisville Federal Correctional Institution ("FCI-Otisville"), Otisville, New York, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 26, 2005. Marvin challenges his 1995 Monroe County Court of Common Pleas convictions for theft by deception, receiving stolen property, removal of and falsification of identification numbers, dealing in vehicles with removed or falsified numbers and dealing in titles and plates for stolen vehicles. Marvin was sentenced to an aggregate term of two to six years imprisonment.

Respondents argue that the petition should be denied because Marvin has failed to exhaust state court remedies as to all his claims and that his petition is time barred. As the Court agrees that the petition is untimely, the petition will be dismissed.

II. Background and Procedural History

The following background has been extracted from the Pennsylvania Superior Court's denial of Marvin's appeal of the Monroe County Court of Common Pleas' denial of his second petition filed pursuant to the Post Conviction Relief Act ("PCRA"). (Dkt. Entry 13-3, Commonwealth v. Marvin, No. 1934 EDA 2003 (Pa. Super. July 30, 2004).

On July 11, 2995, [Marvin] was convicted after a jury trial of theft by deception, receiving stolen property, removal or falsification of identification numbers, and dealing in titles and plates for stolen vehicles. These convictions related to [Marvin's] involvement in the sale of a stolen motor vehicle on which the vehicle identification numbers ("VINs") had been altered. On August 22, 1995, the trial court sentenced [Marvin] to an aggregate term of 2 to 6 years' imprisonment. [The Superior Court of Pennsylvania] affirmed [Marvin's] judgment of sentence on November 12, 1996. Commonwealth v. Marvin, 688 A.2d 1228 (Pa. Super. 1996)(unpublished memorandum). On August 11, 1997, the Pennsylvania Supreme Court denied [Marvin's] petition for allowance of appeal. Commonwealth v. Marvin, 548 Pa. 667, 698 A.2d 592 (1997)(table). [Marvin] began serving his term of imprisonment on August 14, 1998.

On January 5, 1999, [Marvin] filed his first pro se PCRA petition, which was amended on January 20, 2000, following the appointment of counsel. In the amended petition, counsel raised nine claims of ineffective assistance of counsel and sought correction of [Marvin's] sentence. ... On September 20, 2000, the PCRA court dismissed [Marvin's] petition as untimely filed. However, the court granted [Marvin] a credit of 40 days' time served. On September 29, 2000, [Marvin] filed a pro se application for reconsideration and a motion for a new trial based on "after discovered evidence," which the PCRA court denied by order dated October 4, 2000. [Marvin] timely appealed from both orders.

On Appeal, [Marvin] sought review of claims he had raised for the first time in his [motion for reconsideration. The Superior Court of Pennsylvania] proceeded to confine its review to the September 20th order of the PCRA court. However, new counsel on appeal also alleged the ineffectiveness of PCRA counsel for failing to raise the alleged "after-discovered evidence" in the amended PCRA petition. ... [The Superior Court of Pennsylvania held that Marvin] admittedly knew of the alleged "after discovered evidence" at the April 11, 2000 evidentiary hearing on his PCRA petition [and did not excuse Marvin's delay in filing." Commonwealth v. Marvin, 797 A.2d 1024 (Pa. Super. 2002)(unpublished memorandum at 9-10). On January 23, 2002, [the Pennsylvania Superior Court] affirmed the PCRA court's September 20th order, dismissing [Marvin's] PCRA petition [as] untimely. Id. On September 24, 2002, the Pennsylvania Supreme Court denied [Marvin's] petition for allocatur. Commonwealth v. Marvin, 570 Pa. 684, 808 A.2d 570 (2002).

Next, [Marvin] filed another pro se PCRA petition on November 25, 2002. Thereafter, he amended this pro se petition on November 27, 2002, and filed another pro se amended petition on December 23, 2002. On January 23, 2003, the PCRA court issued its notice of intent to dismiss without a hearing, noting [Marvin's] previous petition involved the same issues, which had been finally determined adversely to [Marvin]. By order dated February 21, 2003, and filed February 24, 2003, the PCRA court denied relief.

(Id.)

Marvin then filed an appeal with the Superior Court of Pennsylvania questioning whether the PCRA court erred when it: (1) dismissed his second petition as untimely; (2) held that the petition contained issues previously determined adversely to him; and (3) whether it improperly denied him an evidentiary hearing based on his assertion of newly discovered evidence. (Id.) On July 30, 2004, the Pennsylvania Superior Court affirmed the PCRA court's order dismissing Marvin's second PCRA petition. (Id.)

Marvin filed his present petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 on May 26, 2005. (Dkt. Entry 1, Petition.) Marvin raises the following issues in his Petition: (1) multiple claims that the prosecution failed to disclose to evidence favorable to him obtained after he submitted subpoenas and took depositions of various State Police officials in 2001 and 2003; (2) the ineffectiveness of his first PCRA counsel due to her failure to discover the information withheld by the prosecution; and (3) the denial of access to the courts as government officials interfered with his ability to file a timely PCRA petition. Marvin claims he was ...


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