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Richardson v. DiGuglielmo

April 15, 2009

THOMAS A. RICHARDSON, PETITIONER
v.
DAVID DIGUGLIELMO, ET AL., RESPONDENTS



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

Petitioner Thomas A. Richardson, an inmate confined at the Graterford State Correctional Institution ("SCI-Graterford"), initiated this action by filing a pro se petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. (Record document no. 1.) Richardson challenges his 1978 convictions of Murder of the Third Degree and five (5) counts of Aggravated Assault in Dauphin County, Pennsylvania. (See Record document no. 1 at 4.) For the reasons set forth below, the petition will be dismissed as untimely.

Background

The relevant factual background was summarized by the Pennsylvania Superior Court as follows in its July 14, 2008 Memorandum affirming the denial of Richardson's petition under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541, et seq. ("PCRA"):

[Richardson] and Michael Rickard had been together during the entire day on November 9, 1977. Having only a pellet gun owned by [Richardson], they acquired a .32 caliber pistol about 8:00 o'clock, P.M. in a separate incident. Later, about 11:15 o'clock, P.M., they separately entered Troutie's Bar in Harrisburg[.] There, while [Richardson] held a gun to the bartender's head, Rickard pistol-whipped and beat two patrons and the bartender's wife about their heads. When a customer unexpectedly walked toward the rest rooms he was ordered by [Richardson] to 'hold it.' Rickard immediately advanced toward and began beating this customer about the head with the pellet gun he was holding. [Richardson] then shot and killed the bartender. Before [Richardson] and Rickard left the bar together, Rickard smashed his gun into the head of another customer and knocked him to the floor. (Record document no. 7-3 at 4-5.) On February 1, 1978, a jury found Richardson guilty of Murder of the Third Degree and five counts of Aggravated Assault. (Record document no. 7 ¶ 4.) On May 10, 1978, the Honorable William W. Caldwell sentenced Richardson to a term of imprisonment for an aggregate period of thirty-five (35) to seventy (70) years. (Id. ¶ 5.) Richardson filed a direct appeal to the Pennsylvania Superior Court raising the single issue of sufficiency of the evidence. (Id. ¶ 6.) On June 28, 1979, the Pennsylvania Superior Court affirmed the judgment of sentence. (Id. ¶ 7.) Richardson did not seek further review on direct appeal from the judgment of sentence. (Id. ¶ 8.)

On January 13, 1988, Richardson filed his first petition for collateral relief under the former Post-Conviction Hearing Act ("PCHA"). (Id. ¶ 9.) The trial court dismissed the petition without a hearing. (Id. ¶ 10.) Richardson appealed, and the Pennsylvania Superior Court remanded the case for a hearing. (Id.) Following a hearing, the trial court again dismissed the PCHA petition, and the Superior Court affirmed the dismissal. (Id. ¶ 11.)

On April 20, 1994, Richardson filed a petition for writ of habeas corpus with this Court, docketed at Civil No. 4:CV-94-0578. (Id. ¶ 12.) By Order dated December 28, 1994, Richard's petition was denied on the merits. (Id. ¶ 13.)

On September 23, 1997, Richardson filed his second petition for collateral relief under the PCRA. (Id. ¶ 14.) On November 26, 1997, the PCRA court dismissed Richardson's petition as untimely. (Id. ¶ 15; Record document no. 7-3 at 6.) Richardson did not appeal from the denial of his PCRA petition. (Record document no. 7 ¶ 15.)

On May 7, 2005, Richardson filed a third petition for collateral relief under the PCRA. (Id. ¶ 16.) The PCRA court dismissed the petition as untimely, and on July 19, 2006, the Pennsylvania Superior Court affirmed the dismissal. (Id. (citing Commonwealth v. Richardson, 907 A.2d 1137 (Pa. Super. Ct. 2006) (table)). On January 5, 2007, the Pennsylvania Supreme Court denied Richardson's appeal. Commonwealth v. Richardson, 916 A.2d 632 (2007) (table).

On October 9, 2007, Richardson filed his fourth petition for collateral relief under the PCRA. (Id. ¶ 17.) The PCRA court denied the petition as untimely, and on July 14, 2008, the Pennsylvania Superior Court affirmed. (Id. (citing Commonwealth v. Richardson, 959 A.2d 972 (Pa. Super. Ct. 2008) (table)). On January 12, 2009, the Pennsylvania Supreme Court denied Richardson's appeal. Commonwealth v. Richardson, 963 A.2d 469 (Pa. 2009) (table).

Richardson filed the instant petition for writ of habeas corpus on January 29, 2009. (Record document no. 1.) On February 2, 2009, 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 Richardson that he either could have his petition ruled on as filed, or withdraw it and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Record document no. 4.) On March 4, 2009, Richardson filed a notice of election requesting that the Court rule on the petition as filed. (Record document no. 5.)

Because it appeared that Richardson's petition may be barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244, by Order dated March 10, 2009, Respondents were directed to file a partial response addressing the timeliness of the petition. (Record document no. 6.) On March 26, 2009, Respondents filed their partial response (Record document no. 7), a supporting brief (Record document no. 7-2) and exhibits (Record document no. 7-3). Richardson filed his reply (Record document no. 8) on April 9, 2009. Accordingly, the matter is ripe for disposition. 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). Section 2244 establishes a one-year statute of limitations for federal habeas corpus petitions filed by a person in state custody. 28 U.S.C. § 2244(d)(1). Under the plain terms of § 2244(d)(1)(A), a state court criminal judgment becomes final, and the statute of limitations begins to run, when appeals have been exhausted or the time for seeking an appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001); see Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999); Kapral v. United States, 166 F.3d 565, 575, 577 (3d Cir. 1999).

The Third Circuit Court of Appeals has held that "[t]he statute of limitations for federal habeas petitions is subject to two exceptions: (1) statutory tolling during the time a 'properly filed' application for post-conviction review is pending in state court and (2) equitable tolling, a judicially crafted exception." Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003) (citing Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999)); see also Schlueter v. Varner, 384 F.3d 69, 75-76 (3d Cir. 2004). For the reasons set forth below, Richardson's ...


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