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Bailey v. Common Pleas of Allegheny County

March 25, 2009

VANN L. BAILEY, PETITIONER,
v.
COMMON PLEAS OF ALLEGHENY COUNTY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge

Memorandum and Order

Mitchell, M.J.

Vann L. Bailey has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied. The petitioner will be granted leave to demonstrate why judgment should not be entered accordingly.

Bailey is presently incarcerated at the State Correctional Institution at Somerset serving an unspecified sentence imposed following his conviction, by a jury, of burglary, rape, possession of instruments of a crime, involuntary deviate sexual intercourse, recklessly endangering another person, terroristic threats and aggravated assault at No. CP-02-CR-0003434 of 1989*fn1 , in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on February 26, 1990.*fn2

An appeal was taken to the Superior Court which Court affirmed the judgment of sentence on February 14, 1992.*fn3

Bailey filed a first post-conviction petition on November 16, 1992 and relief was denied on January 10, 1994.*fn4 An appeal was taken to the Superior Court on February 2, 1994 and the denial of post-conviction relief was affirmed on October 18, 1995.*fn5 A second post-conviction petition was filed on August 25, 2004 and that petition was dismissed on October 28, 2004.*fn6 Bailey filed a third post-conviction petition on March 23, 2007 and that petition was likewise dismissed on September 21, 2007.*fn7 An appeal was taken to the Superior Court which affirmed the denial of relief on August 12, 2008 and leave to appeal was denied by the Pennsylvania Supreme Court on January 12, 2009.*fn8

In the instant petition which was filed on February 18, 2009, Bailey contends he is entitled to relief on the following grounds:

1. The error of the trial court in not merging the aggravated assault and rape and involuntary deviate sexual intercourse charges and improperly considering the murder and the ejaculation of the defendant in the victim's mouth.

2. Denial of the effective assistance of counsel for failing to argue the merger issue and in failing to seek a change of venue due to pretrial publicity or arguing a suppression motion based on a seizure of the petitioner's scalp and pubic hair without a warrant.

3. The prosecutor made false representations concerning the petitioner's brother at the time of sentencing.*fn9 It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:

(1) A 1-year period of limitation shall apply to the application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...


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