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Smith v. Digugliemo

April 17, 2009

KAREEM SMITH,
v.
DAVID DIGUGLIEMO, ET AL.,



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

MEMORANDUM

Presently before the Court are Kareem Smith's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1), the Report and Recommendation of Magistrate Judge Timothy R. Rice (Doc. No. 9), and Petitioner's Objection to Magistrate's Report and Recommendation (Doc. No. 10). For the following reasons, the Objections will be overruled and the Petition will be dismissed.

I. BACKGROUND

In the early morning hours of May 22, 1999, Kareem Smith ("Petitioner") and an accomplice robbed and murdered Bruce Goldberg as he was leaving a bar in Philadelphia, Pennsylvania. (Doc. No. 8 at 1); Commonwealth v. Smith, No. 984, slip op. at 1 (Pa. Super. Ct. Jan. 5, 2005). After Petitioner's capital murder trial had begun in the Court of Common Pleas of Philadelphia County, Petitioner entered a negotiated guilty plea to third-degree murder, robbery, and criminal conspiracy. (Doc. No. 1 at 4; Doc. No. 9 at 1.) On September 10, 2001, Petitioner was sentenced to 20 to 40 years in prison. (Doc. 1 at 4; Doc. 8 at 1; Doc. No. 9 at 1.) Petitioner did not file a direct appeal following his conviction. (Doc. No. 1 at 5; Doc. No. 8 at 1; Doc. No. 9 at 1.)

On April 11, 2003, Petitioner filed a petition for review pursuant to the Pennsylvania Post Conviction Relief Act (hereinafter "PCRA"). 42 Pa. Cons. Stat. Ann. §§ 9541-46 (1998); Commonwealth v. Smith, No. 984, slip op. at 2 (Pa. Super. Ct. Jan. 5, 2005). The court appointed counsel to represent Petitioner, and on February 4, 2004, Petitioner's counsel filed a "no merit" letter wherein she advised that the PCRA petition was untimely filed and subject to no time bar exceptions. Commonwealth v. Smith, No. 984, slip op. at 2 (Pa. Super. Ct. Jan. 5, 2005); (Doc. No. 8, Ex. 2 at 1, 7.) On March 5, 2004, Petitioner's PCRA petition was dismissed as untimely. (Doc. No. 9 at 1; Doc. No. 8 at 1.) On January 5, 2005, the Superior Court of Pennsylvania affirmed the dismissal. See Commonwealth v. Smith, 872 A.2d 1275 (Pa. Super. Ct. 2005). The Supreme Court of Pennsylvania denied allocatur on May 24, 2005. See Commonwealth v. Smith, 876 A.2d 395 (Pa. 2005).

On July 7, 2005, Petitioner filed the instant pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. On October 21, 2005, the District Attorney for Philadelphia County filed a Response to the Petition and requested that the Petition be dismissed with prejudice and without a hearing. (Doc. No. 8 at 6.) On October 31, 2005, Magistrate Judge Timothy R. Rice filed a Report and Recommendation and recommended that the Petition be denied as untimely. (Doc. No. 9 at 6.) Petitioner filed objections to the Report and Recommendation and asked us to grant equitable tolling for his petition and schedule an evidentiary hearing on this matter. (Doc. No. 10 at 1, 3.)

II. LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"), a prisoner has one year from the date of the final disposition of his case in state court in which to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1). The relevant portion of the statute provides:

(d) (1) A 1-year period of limitation shall apply to an 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 the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...


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