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George v. Wynder

November 21, 2008

KEITH HOWARD GEORGE, PETITIONER,
v.
SUPERINTENDENT WYNDER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(Judge Caputo)

MEMORANDUM

Petitioner Keith Howard George, an inmate confined at the Dallas State Correctional Institution ("SCI-Dallas") in Dallas, Pennsylvania, commenced this action by filing a pro se Petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. (Doc. 1.) George challenges his 1995 conviction in the Lebanon County Court of Common Pleas of first-degree murder. For the reasons set forth below, the Petition will be dismissed.

BACKGROUND

On March 16, 1995, a jury found George guilty of two counts of first-degree murder in connection with the shooting deaths of his former girlfriend and her boyfriend at her North Annville Township home on or about July 16, 1994. (Doc. 1 at 18, 9/6/2005 Memorandum of Pennsylvania Superior Court affirming denial of Second PCRA Petition.) On March 29, 1995, George was sentenced to two consecutive terms of life imprisonment. (See id.) The Pennsylvania Superior Court affirmed the judgment of sentence on November 21, 1997, and on November 4, 1998, the Pennsylvania Supreme Court denied allocatur. Commonwealth v. George, 707 A.2d 548 (Pa. Super. 1997) (unpublished memorandum), allocatur denied, 732 A.2d 612 (1998) (Table).

On September 15, 1999, George filed his first petition under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541, et seq. ("PCRA"). George raised the following issues: (1) ineffective assistance of trial counsel for failing to produce subpoenaed key defense witnesses; (2) denial of a fair trial where, even after a request, the prosecutor withheld exculpatory evidence material to George's innocence; (3) ineffective assistance of trial counsel for failing to call alibi witnesses at trial; and (4) ineffective assistance of original post-conviction counsel for failing to call the coroner during an evidentiary hearing where the time of death was and remains a significant issue. (See George v. Lavan, Civil No. 3:01-CV-2233, Doc. 7 at 12, 5/4/2001 Pennsylvania Superior Court Memorandum affirming denial of First PCRA Petition.) An amended petition subsequently was filed by George's appointed counsel. (See Doc. 1 at 19.) On February 2, 2000, following a hearing, the PCRA Petition was denied. (See id.)

On appeal, the Pennsylvania Superior Court affirmed the denial of relief based on the mistaken belief that the PCRA Petition was untimely filed. (See id. (citing Commonwealth v. George, 778 A.2d 1241 (Pa. Super. 2001) (unpublished memorandum), appeal denied, 788 A.2d 373 (2001) (Table)). Specifically, the Pennsylvania Superior Court was under the mistaken belief that, following their November 21, 1997 decision affirming his judgment of sentence, George did not seek further review with the Pennsylvania Supreme Court. (See George v. Lavan, Civil No. 3:01-CV-2233, Doc. 7 at 14.) Thus, the Court concluded that George's judgment of sentence became final on December 21, 1997, upon expiration of the thirty (30) day time period in which to seek allocatur. (See id.) As a result, the Court determined that the PCRA Petition, filed on September 15, 1999, was untimely because it was filed more than one year from the date his judgment of sentence became final. (See id. (citing 42 Pa. Cons. Stat. § 9545(b)(1)).

On November 21, 2001, George filed a Petition for writ of habeas corpus in this Court. (See George v. Lavan, Civil No. 3:01-CV-2233.) In that case, George submitted documentation with his reply indicating that the Pennsylvania Superior Court incorrectly determined that his PCRA Petition was untimely filed. (See id., Doc. 11.) Accordingly, by Order dated March 1, 2002, this Court directed the respondents in that case to submit relevant documentation and a memorandum of law addressing the time bar and exhaustion issues. (See id., Doc. 12.) In their Memorandum, the respondents stated that, following a thorough review of their files, they were constrained to agree with Petitioner that he had sought allocatur with the Pennsylvania Supreme Court, and thus his judgment of sentence did not become final until February 2, 1999. (See id., Doc. 16.) Therefore, they agreed that his PCRA Petition, filed on September 15, 1999, was timely filed before the expiration of the one-year time limit on February 2, 2000. (See id.)

On September 27, 2002, this Court issued a Memorandum and Order in which it noted that the PCRA Petition had been timely filed. (See id., Doc. 24.) The Petition for writ of habeas corpus was dismissed for failure to exhaust state court remedies without prejudice to any rights George may have had to pursue further remedies in the Pennsylvania Courts. (See id.)

George did not seek redress in the Pennsylvania Superior Court regarding its error as to the timeliness of his PCRA Petition. Instead, on October 30, 2002, he filed a second PCRA Petition with the PCRA Court raising entirely new issues. (See Doc. 1 at 19.) George raised the following issues: (1) ineffective assistance of trial counsel for failing to impeach Trooper Pfautz with regard to the time at which George became a suspect in the shooting deaths of his former girlfriend and her boyfriend; (2) ineffective assistance of trial counsel for failing to raise the issue on direct appeal that the testimony of a prison informant, William Eck, should have been suppressed; and (3) ineffective assistance of original PCRA counsel for withdrawing the claim before the hearing on the first PCRA Petition that trial counsel was ineffective for not raising the issue as to Eck's testimony on appeal. (See id. at 26-33, 10/8/2004 Opinion of PCRA Court denying Second PCRA Petition.) On January 27, 2004, the PCRA Court conducted a hearing on George's Second PCRA Petition. (See Doc. 24, transcript of 1/27/2004 hearing.) In an Opinion issued on October 8, 2004, the PCRA Court determined that the Second PCRA Petition was untimely. (See Doc. 1 at 27-29.) However, the PCRA Court also analyzed the merits of the second PCRA Petition and determined that George failed to meet his burden to demonstrate his three ineffective assistance of counsel claims, and thus declined to grant him relief. (See id. at 29-33.)

On September 6, 2005, the Pennsylvania Superior Court affirmed the PCRA Court's decision, agreeing that the second PCRA Petition was untimely, and rejecting George's argument that his claims fell under the after-discovered evidence exception of the time limitations set forth in the PCRA. (See id. at 18-23.) On December 19, 2005, the Pennsylvania Supreme Court denied George's Petition for Allowance of Appeal. (See id. at 16, 12/19/05 Order of Pennsylvania Supreme Court.)

On February 16, 2006, George filed the instant Petition for writ of habeas corpus raising the three issues that were raised in the second PCRA Petition. (See Doc. 1 at 5-8.) George also raises an additional ground. He claims that, when this Court dismissed his first Petition for writ of habeas corpus for failure to exhaust his state court remedies, it restored his right to file a PCRA Petition raising any issue, including issues that were not raised in his first PCRA Petition. (See id. at 9.)

On March 6, 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 George that he either could have his petition ruled on as filed, or withdraw it and file one all-inclusive ยง 2254 petition within the one- year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Doc. 7.) On March 13, 2006, George filed a Notice of Election requesting that the Court rule on the Petition as filed. (Doc. 8.) Accordingly, an Order to Show Cause was issued on March 15, 2006 and served on the Warden of SCI-Dallas, the Pennsylvania Office of Attorney General, and the Lebanon County District Attorney's Office. (Doc. 9.) The Pennsylvania Office of Attorney General subsequently referred the case to the Lebanon County District Attorney in light of the District Attorney's access to the records necessary to respond to the Petition. (Doc. 14) Following a request for an extension of time to file a ...


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