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Covert v. Tennis

November 7, 2008

TOMMY COVERT, PETITIONER
v.
SUPERINTENDENT TENNIS, ET AL., RESPONDENTS



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

Petitioner Tommy Covert, an inmate confined at the Rockview State Correctional Institution ("SCI-Rockview") in Bellefonte, Pennsylvania, commenced this action by filing a petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. (Doc. 1--2.) The petition originally was filed on December 22, 2005 in the United States District Court for the Eastern District of Pennsylvania and subsequently transferred to this court by order dated January 18, 2006. (See Doc. 1--3.) Covert challenges his 1996 Monroe County conviction. For the reasons set forth below, the petition will be denied.

I. Background

On February 8, 1995, Covert was charged with rape, statutory rape, indecent assault, involuntary deviate sexual intercourse, aggravated indecent assault, and corruption of minors based on allegations made by his step-sister, a thirteen-year old female who resided in the same house as Covert at the time of the incident. (Doc. 10-2 at 3, 11/27/96 Memorandum of Pennsylvania Superior Court.) Covert was twenty-years old at the time of the incident. (Id.)

On March 7, 1996, Covert was convicted by a jury sitting in Monroe County of rape, statutory rape, corruption of minors, and indecent assault. (Id. at 14, 5/6/04 Memorandum of Pennsylvania Superior Court.) On April 23, 1996, Covert was sentenced to a term of imprisonment of six to twelve years. (Id.) Covert filed a direct appeal from his sentence to the Pennsylvania Superior Court in which he raised the following issues: (1) the sentencing court erred in relying on impermissible factors in sentencing him in the aggravated range recommended by the Pennsylvania Sentencing Guidelines (id. at 4--8), and (2) the trial court erred in refusing to disclose the contents of the victim's Children and Youth Services ("CYS") file (id. at 8--11.) On November 27, 1996, the judgment of sentence was affirmed. Commonwealth v. Covert, 688 A.2d 1225 (Pa. Super. Ct. 1996) (unpublished memorandum). On May 15, 1997, the Pennsylvania Supreme Court denied allocatur. Commonwealth v. Covert, 693 A.2d 586 (Pa. 1997).

On November 12, 1997, Covert filed his first petition under Pennsylvania's Post Conviction Relief Act , 42 Pa. Cons. Stat. Ann. § 9541, et seq. ("PCRA"). Counsel was appointed to represent Covert and subsequently filed an amended petition. (Doc. 10-3 at 35, 10/22/01 Memorandum of the Pennsylvania Superior Court.) Following an evidentiary hearing on October 29, 1999, the PCRA court denied relief on December 10, 1999. (Id.) Covert raised the following issues in his timely appeal to the Pennsylvania Superior Court: (1) ineffective assistance of trial counsel for failing to call character witnesses, and (2) ineffective assistance of trial counsel for failing to raise the issues of weight and sufficiency of the evidence. (Id. at 35.)

In its October 22, 2001 Memorandum affirming the denial of Covert's first PCRA petition, the Pennsylvania Superior Court found that trial counsel could not be deemed ineffective. (Id. at 35--39.) Specifically, with regard to the issue concerning character witnesses, the court found that none of the prospective witnesses met the requirements to offer character evidence and that trial counsel did not know of the existence of some of the witnesses, and thus could not be deemed ineffective. (Id. at 36-38.) The court also found no basis to disturb the PCRA court's findings on the second issue because Covert's claim concerning the weight and sufficiency of the evidence was based on his assertion that the victim's testimony was not credible, and it was not improper for the jury to accept the victim's version of events in its role as fact finder. (Id. at 38--39.) On May 22, 2002, Covert's petition for allowance of appeal to the Pennsylvania Supreme Court was denied. (Id. at 33.)

On May 27, 2003, Covert filed a second PCRA petition pro se in which he raised the issue of ineffective assistance of appellate and first PCRA counsel for not preserving the following errors by trial counsel: (1) failure to procure a psychological evaluation of the victim (Doc. 10-3 at 27, 5/27/03 PCRA petition); (2) failure to request a charge to the jury as to the victim's reputation for dishonesty in the community (id. at 27--28); (3) failure to request a substantive impeachment charge as to the victim and Officer Bowman (id. at 28--29); (4) failure to strike for cause or request a mistrial as to a juror who was reluctant to be a juror (id. at 29); and (5) failure to properly object and preserve the use of hearsay statements (id. at 29--30). On May 28, 2003, the PCRA court denied Covert's second PCRA petition as untimely. (Id. at 5--6.) On May 6, 2004, the Pennsylvania Superior Court affirmed the dismissal of Covert's second PCRA petition on the basis that it was untimely and noted that Covert had not invoked any of the exceptions set forth in 42 PA. CONS. STAT. § 9545(b)(1)(I-iii). (Doc. 10-2 at 14-17.) On December 22, 2004, the Pennsylvania Supreme Court denied Covert's petition for allowance of appeal. (Doc. 10-3 at 20.)

On December 22, 2005, Covert filed the instant petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania raising the following issues: (1) Petitioner's second PCRA petition was timely filed and thus was improperly dismissed (Doc. 1-2 at 9); (2) the Commonwealth failed to prove each element beyond a reasonable doubt at trial and offered inconsistent evidence (id. at 9--10); (3) trial counsel was ineffective for failing to procure an evaluation of the victim and a charge regarding the victim's dishonesty (id. at 10); and (4) trial counsel was ineffective for failing to request a charge on substantive impeachment, for failing to strike a juror for cause and request a mistrial, and for allowing hearsay (id.). Because Covert was convicted in this district, by order dated January 17, 2006, the case was transferred to this court pursuant to 28 U.S.C. § 2241(d). (Doc. 1-3.)

Following transfer of the case, on March 8, 2006, 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 Covert that he either could 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 March 22, 2006, Covert filed his notice of election requesting that the court rule on the petition as filed. (Doc. 4.) Accordingly, an order to show cause was issued on March 24, 2006 and served on the warden of SCI-Rockview, the Pennsylvania Office of Attorney General, and the Monroe County District Attorney's Office. (Doc. 5.) The Pennsylvania Office of Attorney General subsequently referred the case to the Monroe County District Attorney in light of the District Attorney's access to the records necessary to respond to the petition. (Docs. 6, 7.) On May 3, 2006, the Monroe County District Attorney filed an answer to the petition (Doc. 9) and accompanying exhibits (Doc. 10).

On January 19, 2007, Covert filed a motion in which he asserted that he was never served with the answer to the petition and requested that the court compel Respondents to serve him with a copy of the answer and grant him an extension of time to file a reply. (Doc. 12.) By order dated May 30, 2007, the motion was granted, Respondents were directed to serve a second copy of their answer and exhibits on Covert within five (5) days, and Covert was granted twenty-five (25) days from the date of the order to file a reply. (Doc. 14.)

On June 26, 2007, Petitioner filed a letter to the court stating that Respondents had not re-served their response in accordance with the court's May 30, 2007 order (Doc. 15). On August 16, 2007, Petitioner filed a second letter to the court stating that he was confined in the Restricted Housing Unit and did not have access to the documents he needed to prepare his reply. (Doc. 16.) Because Petitioner did not state in his second letter whether Respondents had re-served a copy of their answer and exhibits, by order dated August 28, 2007, the court directed the Clerk of Court to send a copy of the answer and exhibits to Covert within five (5) days and granted Covert an extension of twenty-five (25) days to file a reply. (Doc. 17.) Following an additional motion for an extension of time (Doc. 18), which was granted (Doc. 19), on November 14, 2007, Covert filed his reply (Doc. 21).

II. Discussion

A. Timeliness of ...


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