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Colon v. Rozum

January 28, 2009

RAYMOND COLON,
v.
GERALD L. ROZUM, ET AL.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: PETITIONER'S OBJECTIONS TO THE MAGISTRATE'S REPORT AND RECOMMENDATION

I. Introduction

Petitioner, Raymond Colon ("Colon"), filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The undersigned referred the case to Magistrate Judge Thomas J. Rueter for a Report and Recommendation ("R&R") on the merits. (Doc. 5). Magistrate Judge Rueter filed his R&R (Doc. 12) on October 9, 2008, and presently before the Court are Petitioner's Objections, which he filed on October 17, 2008 (Doc. 13) and on October 27, 2008 (Doc. 14).

Upon independent and thorough review, and for the reasons stated below, this Court denies Petitioner's objections and accepts Magistrate Judge Rueter's R&R.

II. Background

A. Procedural History

After a jury convicted Colon for carjacking in federal court, Crim. Doc. 2:96-MJ-00558-1 (E.D. Pa.), Colon was subsequently found guilty of robbery and several other related offenses after a trial by jury in the Court of Common Pleas of Montgomery County. See (Ex. FF).*fn1 Judge Tressler sentenced petitioner to a fourteen (14) to thirty-five (35) year prison sentence to run consecutively with Colon's federal sentence of ten (10) years. See (Id.). Petitioner filed a petition for reconsideration of his sentence, which was denied December 23, 1997. (Id.). Petitioner appealed to the Pennsylvania Superior Court, which affirmed the sentence on August 13, 1998. (Ex. CC).

On March 2, 1999, Colon filed his first petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"). After receiving the petition, Judge Tressler appointed counsel for Colon. (Ex. BB). However, the appointed counsel filed a no-merit letter under Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), and the court relieved counsel of her responsibilities on July 21, 1999. (Ex. AA). In that order, which was sent to Colon, the court also indicated that it intended to dismiss Colon's petition but that he had twenty days to file a response. (Id.). When Colon failed to respond, the court dismissed the petition on December 9, 1999 and notified Colon that he had thirty days to appeal the dismissal to the Pennsylvania Superior Court, which he did not do. (Ex. Z).

Colon filed a second PCRA petition on April 7, 2006 (Ex. Y), which was dismissed as untimely on June 6, 2006. (Ex. V, X). Colon also filed a third PCRA petition with the trial court on January 8, 2007 (Ex. T), which the trial court also dismissed as being untimely on February 5, 2007 (Ex. R, S). Petitioner appealed the dismissal of his second petition to the Pennsylvania Superior Court, and his appeal was denied on February 12, 2007. (Ex. Q).

Colon has also filed numerous other motions for post-conviction relief, including one on July 9, 2007, which was dismissed by the trial court. (Ex. L, K). The appeal of that order was dismissed on September 19, 2007 by the Pennsylvania Superior Court. (Ex. J).

Colon then filed the instant Petition for Writ of Habeas Corpus (Doc. 1) on July 7, 2008, and generally claims that his right against Double Jeopardy under the Fifth Amendment, as incorporated against the states by the Fourteenth Amendment, was violated when he was convicted of carjacking in federal court, then robbery and the related offenses in Pennsylvania state court. The Respondent filed a response to Colon's petition on September 15, 2008 (Doc. 7), to which Colon responded on October 1, 2008 (Doc. 10). Magistrate Judge Rueter then filed his R&R (Doc. 12) on October 9, 2008. Petitioner also filed a Petition to Amend his Habeas Petition on October 9, 2008. (Doc. 11). Petitioner filed his Objections and Response to the R&R (Doc. 13) on October 17, 2008, then filed additional objections on October 27, 2008 (Doc. 14).

B. Summary of the Magistrate Judge's R&R

The R&R found that Colon's Petition for a Writ of Habeas Corpus was time-barred in its entirety under the statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). According to the R&R, Petitioner's conviction became final on September 12, 1998, when his time for seeking an appeal to the Supreme Court of Pennsylvania expired. The R&R also determined that the AEDPA statute of limitations was subject to statutory tolling during the time that Colon's first PCRA petition was filed with the state court, from March 2, 1999 to December 9, 1999. With the statutory tolling, Colon's AEDPA statute of limitations expired on June 20, 2000. The R&R also found that Petitioner's second PCRA petition, filed on April 7, 2006, and all other successive post-conviction relief petitions filed in state court did not toll the limitations period because they were filed after the AEDPA statute of limitations had already expired and because the state courts determined that the petitions were all ...


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