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Sero v. Warden

July 17, 2008

JOSEPH P. SERO, PETITIONER
v.
WARDEN, ET AL., RESPONDENTS



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

Petitioner, Joseph P. Sero ("Sero"), an inmate confined at the State Correctional Institution at Fayette ("SCI-Fayette"), in LaBelle, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his 1975 conviction of Murder of the First Degree imposed by the Dauphin County Court of Common Pleas. (Doc. 1.) For the reasons set forth below, the petition will be dismissed as untimely. See 28 U.S.C. § 2244(d).

I. Background

A. Procedural History

Sero filed his petition on August 20, 2007. (Doc. 1.) On August 23, 2007, in accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the court issued a formal notice to Sero that he could either have his petition ruled on as filed, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Doc. 3.) On September 5, 2007, Thomas filed his notice of election requesting that the court rule on the petition as filed. (Doc. 4.) Upon review of Sero's petition, it appeared that it may be barred by the statute of limitations. See United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005). Therefore, the court directed Respondents to file a response concerning the timeliness of the petition. (Doc. 5.) A response was filed on October 10, 2007. (Doc. 8.) On October 29, 2007, Sero filed his reply. (Doc. 9.) Sero subsequently filed a document entitled "Motion to Issue Petition in the Matter of Petition for Writ of Habeas Corpus." (Doc. 10.)

B. Factual Background

On October 24, 1975, following trial, a jury sitting in the Dauphin County Court of Common Pleas found Sero guilty of Murder of the First Degree. (Doc. 8-2 at 2.) On September 3, 1976, following the denial of post-verdict motions, Sero was sentenced to a term of life imprisonment. (Id.) The Supreme Court of Pennsylvania affirmed the judgment of sentence on April 28, 1978. (Id.)

In June 1978, Sero filed a pro se petition for relief under the since repealed Post-Conviction Hearing Act ("PCHA"). (Id.; Doc. 8-3 at 9.) On July 18, 1978, Sero, represented by counsel, filed a supplemental petition for relief under the PCHA. (Doc. 8-2 at 2.) By order dated July 28, 1978, the trial court judge denied PCHA relief for the reasons stated in the Commonwealth's answer to the PCHA petition. (Id.; Doc. 8-3 at 13.) On July 5, 1979, the Pennsylvania Supreme Court affirmed the trial court's order denying PCHA relief. (Doc. 8-2 at 2; Doc. 8-3 at 15.)

On July 30, 1979, Sero filed a petition for writ of habeas corpus ("first petition") with this court pursuant to the provisions of 28 U.S.C. § 2254, which was docketed at Civil No. 79-971. (Doc. 8-2 at 2.) On January 31, 1980, following review of Sero's petition, the Honorable Joseph G. Quinn, United States Magistrate Judge, issued a Report of Magistrate recommending dismissal of the first petition. (Id.) On February 29, 1980, the Honorable Richard P. Conaboy adopted the Report and dismissed the first petition. (Id. at 2-3.)

On February 17, 1988, Sero filed a second petition for writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254 ("second petition") which was docketed at Civil No. 88-0248. (Doc. 8-2 at 3.) On April 21, 1988, the second petition was dismissed by Judge Conaboy on the basis that it was a second or successive petition pursuant to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977). (Doc. 8-2 at 3.) By order dated November 30, 1988, the United States Court of Appeals denied a petition for certificate of probable cause. (Id.) On January 11, 1989, the Third Circuit Court of Appeals denied a petition for rehearing en banc. (Id.)

On November 6, 1995, Sero filed a petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. ("first PCRA petition"). (Doc. 8-2 at 3; Doc. 8-3 at 17.) On December 5, 1996, the PCRA court denied the first PCRA petition. (Doc. 8-2 at 3; Doc. 8-3 at 19.) Sero appealed to the Pennsylvania Superior Court, and on October 21, 1988, the PCRA court's order was affirmed. (Doc. 8-2 at 3; Doc. 8-3 at 23.) On March 29, 1999, the Pennsylvania Supreme Court denied Sero's petition for allowance of appeal. (Doc. 8-2 at 3; Doc. 8-3 at 27.)

On January 25, 2006, Sero filed a second petition for relief under the PCRA ("second PCRA petition"). (Doc. 8-2 at 3; Doc. 8-3 at 29.) On July 7, 2006, the PCRA court dismissed the second PCRA petition as untimely. (Doc. 8-2 at 3-4; Doc. 8-3 at 31.) Sero appealed to the Pennsylvania Superior Court, and on March 26, 2007, the Superior Court affirmed the order of the PCRA court. (Doc. 8-2 at 4; Doc. 8-3 at 33.) On July 30, 2007, the Pennsylvania Supreme Court denied Sero's petition for allowance of appeal. (Doc. 8-2 at 4; Doc. 8-3 at 36.) Sero filed the instant petition for writ of habeas corpus on August 20, 2007. (Doc. 1.)

II. Discussion

The court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the AEDPA. See 28 U.S.C. § 2244(d)(1). A state prisoner requesting habeas ...


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