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Sistrunk v. Rozum

April 21, 2009

EDWARD SISTRUNK
v.
GERALD ROZUM, ET AL.



The opinion of the court was delivered by: John R. Padova, J.

ORDER-MEMORANDUM

AND NOW, this 21st day of April, 2009, upon careful and independent consideration of the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, and all attendant and responsive briefing, and after review of the Supplemental Report and Recommendation of United States Magistrate Judge Elizabeth T. Hey, and consideration of Petitioner's Objections to the Magistrate Judge's Supplemental Report and Recommendation, IT IS HEREBY ORDERED as follows:

1. Petitioner's Objections to the Supplemental Report and Recommendation of Magistrate Judge Elizabeth T. Hey are OVERRULED;

2. The Report and Recommendation is APPROVED and ADOPTED;

3. The Petition for Writ of Habeas Corpus is DENIED with prejudice and DISMISSED without an evidentiary hearing; and

4. There is no probable cause to issue a certificate of appealability.

I. BACKGROUND

On May 18, 1995, Petitioner was sentenced to life imprisonment for the July 23, 1993 murder of Julmaine Moody. See Commonwealth v. Sistrunk, No. 2514 EDA 2003, slip op. at 1-2 (Pa. Super. Ct. Jan. 26, 2005). He was also sentenced to terms of imprisonment of two and one-half to five years for possession of an instrument of crime; one to two years for each of two counts of reckless endangerment; and one to two years for each of two counts of simple assault, the lesser sentences to run concurrently to the life sentence. Id. at 2. Sistrunk's sentence was affirmed by the Pennsylvania Superior Court on July 19, 1996. Commonwealth v. Sistrunk, No. 3511 Phila. 1995, slip op. (Pa. Super. Ct. July 19, 1996). His petition for allowance of appeal was denied by the Pennsylvania Supreme Court on December 11, 1996. Commonwealth v. Sistrunk, 686 A.2d 1310 (Pa. 1996) (table).*fn1

He filed a petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-9546, on December 11, 1997, asserting that his appellate counsel was ineffective for failing to challenge the effectiveness of his trial counsel. Commonwealth v. Sistrunk, No. 1855 EDA 1999, slip op. at 1-2 (Pa. Super. Ct. June 19, 2000). The PCRA court dismissed the petition on the grounds that the issues had been litigated on direct appeal. Id. at 1. The dismissal was affirmed by the Pennsylvania Superior Court on June 19, 2000. Id. at 3. Petitioner filed a second PCRA petition on June 26, 2002, asserting that he was entitled to a new trial or evidentiary hearing based upon newly discovered evidence that another person had admitted to the shooting of Julmaine Moody. Sistrunk, No. 2514 EDA 2003, slip op. at 3. Petitioner alleged that he learned, on April 29, 2002, that "Damon Rodriguez, who is now deceased, allegedly told Manuel Rodriguez in 1993 that it was he who was driving the car and who shot at Snyder and hit Moody." Id. at 5. The PCRA court dismissed this petition as untimely on July 9, 2003. Id. at 3. The Superior Court affirmed on January 26, 2005. Id. at 8. Petitioner's petition for allowance of appeal of this decision was denied by the Pennsylvania Supreme Court on October 4, 2005. Commonwealth v. Sistrunk, 885 A.2d 533 (Pa. 2005) (table). On August 18, 2006, Petitioner filed a third PCRA petition, asking the PCRA court to vacate his conviction and sentence based upon newly discovered evidence of Petitioner's actual innocence. The third PCRA petition asserts that:

On June 22, 2006, Petitioner's present counsel received a letter from Gregory Anderson. In the letter, Anderson admits that he testified falsely at Petitioner's preliminary hearing because the police had coerced him into saying that Petitioner was the shooter/driver under threat of being charged with a crime himself. Mr. Anderson did not shown [sic] up to testify at Petitioner's trial because he knew that the police were expecting him to testify similar [sic] to that which he falsely gave at the preliminary hearing and he didn't want to perjure himself again. . . . Mr. Anderson's truthful testimony would have exonerated Petitioner of the crimes he has been convicted of. (Resp. to Pet., Ex. E at 4-5.)

The third PCRA petition was still pending in the state courts at the time Sistrunk filed his federal habeas petition on December 22, 2006. He asserted two claims for relief based upon newly discovered evidence of his actual innocence: (1) the confession of Damon Rodriguez to his brother Manuel Rodriguez, which Petitioner learned about on April 29, 2002, and (2) the letter Petitioner's attorney received from Gregory Anderson on June 22, 2006. (Pet. ¶ 12(A), (B).) On July 5, 2007, Magistrate Judge Hey issued a Report and Recommendation, recommending that we dismiss the Petition in its entirety. In an Order-Memorandum filed October 31, 2007, we adopted the Report and Recommendation with respect to Sistrunk's first claim, dismissing that claim, but sustained his objection regarding the second claim. Because Sistrunk had filed a third PCRA petition for the purpose of attempting to exhaust the issue involving the Anderson letter, and that petition was still pending, we stayed Claim Two of the Petition. Sistrunk proceeded to exhaust Claim Two and on October 30, 2008, we recommitted the matter to Magistrate Judge Hay to prepare a Supplemental Report and Recommendation.

The Supplemental Report and Recommendation ("R&R"), dated February 24, 2009, recommends that Claim Two be dismissed as time-barred. Magistrate Judge Hay determined that Sistrunk's conviction became final on March 11, 1997; that his federal petition was filed on December 22, 2006, more than seven years beyond the AEDPA statute of limitations, see 28 U.S.C. § 2244(d)(1); that the Anderson letter could not constitute "newly discovered evidence" under § 2244(d)(1)(D), and thus permit the one-year limitations period to begin as of the date the Anderson letter was received by Sistrunk's counsel; that Sistrunk's third PCRA petition did not toll the running of the AEDPA limitations period; that equitable tolling was not available; and that no certificate of appealability should issue. Sistrunk filed objections to the R&R on March 5, 2009. We find that none of the objections have merit.

II. DISCUSSION

A. Objection 1 -- Newly ...


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