The opinion of the court was delivered by: Robert C. Mitchell, United States Magistrate Judge
Thomas Paul Richard, Sr., has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed, and because no viable constitutional issues exist upon which a reasonable jurist could conclude that there is a basis for appeal, a certificate of appealability will be denied. Judgment will be entered accordingly.
Thomas Paul Richard, Sr. an inmate at the State Correctional Institution at Graterford has presented a petition for a writ of habeas corpus. The petition was originally filed in the United States District Court for the Eastern District of Pennsylvania on September 11, 2006, and transferred to this Court on January 5, 2007. On January 9, 2007, the respondents and the District Attorney were directed to file an appropriate response, however, because the state court records were before the Superior Court of Pennsylvania, the respondents moved on February 7, 2007, to delay the filing of their response pending a remand of the record. That motion was granted, and ultimately, an answer was filed on December 28, 2007.
Richard is presently serving a 25 1/2 to 51 year sentence following his conviction, by a jury, of rape, involuntary deviate sexual intercourse, aggravated indecent assault, simple assault, endangering the welfare of children and corruption of the morals of a minor at No. 3607 of 2000 in the Court of Common Pleas of Westmoreland County, Pennsylvania. This sentence was imposed on October 25, 2000.*fn1
An appeal was taken to the Superior Court in which the issues presented were:
I. Whether the trial court erred in denying appellant's motion pursuant to Rule 1100 [Pa.R.Crim.P]?
II. Whether trial counsel was ineffective for failing to challenge the admissibility of certain evidence, and the results of DNA analysis therefrom, based upon defects in chain of custody?
III. Whether trial counsel was ineffective for failing to offer expert testimony to refute the Commonwealth's DNA expert at trial?*fn2 On April12, 2002, the judgment of sentence was affirmed. Com. v. Richard , 803 A.2d 276 (Pa.Super.2002).*fn3 Allowance of appeal was denied by the Pennsylvania Supreme Court on August 27, 2002.
On August 27, 2003, a post-conviction petition was filed and subsequently amended on April 7, 2004 and again on October 25, 2004.*fn4 On January 12, 2005, post-conviction relief was denied. An appeal was taken to the Superior Court in which the issues raised were:
1. When evidence does not show "penetration" or "genitals", is prior counsel ineffective for not arguing for acquittal on an aggravated indecent assault charge?
2. Is trial counsel ineffective for failing to call a competing DNA expert when he would have attacked the means employed by the Commonwealth's expert to reach its conclusion that petitioner was the source of the semen and is appellate counsel ineffective for not documenting this claim on direct appeal?
3. When there is a 12 hour delay in reporting a sexual assault, is trial and appellate counsel ineffective for not arguing about a prompt complaint jury instruction?
4. When lay opinion on the credibility of witnesses is admitted, is prior counsel ineffective for not objecting to or raising the issue on appeal?
5. When the trial court uses two impermissible factors as aggravating circumstances, is prior counsel ineffective for not raising the issue?*fn5 On January 12, 2005, post-conviction relief was denied, and on March 13, 2006, the denial of post-conviction relief was affirmed by the Superior Court*fn6 and on August 29, 2006, the Pennsylvania Supreme Court denied leave to appeal.
On October 4, 2006, Richard filed a second post-conviction petition and that petition was dismissed on December 14, 2006.*fn7 An appeal was taken to the Superior Court in which the issues presented were:
1. Did the PCRA Court commit reversible error, as a matter of law, in dismissing the petition, stating that Appellant does not qualify to meet the PCRA exceptions, and that Appellant is not entitled to any relief, without affording the Appellant an evidentiary hearing?
2. Did the PCRA Court commit reversible error, as a matter of law and fact, by not ordering Appellant to file an Amended Petition where allegations of egregious prosecutorial misconduct was diligently discovered and presented to the Court in Appellant's response, and correspondence with the Court that would qualify as a "New Claim" that would undoubtedly otherwise trigger the PCRA exceptions, and to rise to a level of an egregious miscarriage of justice, that no civilized society could possibly tolerate, that would otherwise in itself warrant the immediate discharge of the Appellant?*fn8 The dismissal of the second post-conviction petition as having been untimely filed was affirmed by the Superior Court on September 18, 2007.*fn9 The instant ...