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Stewart v. Coleman

April 21, 2009

RAYMOND LOUIS STEWART PETITIONER
v.
BRIAN V. COLEMAN, ET AL. RESPONDENTS



The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J.

MEMORANDUM

A pro se petition for writ of habeas corpus, (Doc. No. 1), has been filed pursuant to 28 U.S.C. § 2254 by Raymond Louis Stewart ("Stewart"). Respondents have answered the petition. (Doc. No. 14). Stewart is an individual currently incarcerated in the Fayette State Correctional Institution. For the reasons that follow, the petition will be dismissed.

FACTS AND PROCEDURAL HISTORY

After a jury trial on May 30 and 31, 2001, in the Court of Common Pleas of Delaware County, Stewart was convicted of attempted burglary, burglary, theft by unlawful taking, theft by receiving and criminal trespass. Stewart was sentenced to two concurrent terms of twenty-five to fifty years of imprisonment.

Stewart filed a direct appeal. On September 26, 2003, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Stewart, Nos. 1631, 1632 EDA 2002 (Pa. Super. Sept. 26, 2003) (unpublished memorandum), attached as Ex. "F" to Respondents' Answer. The Pennsylvania Supreme Court denied Stewart's petition for allowance of appeal on December 30, 2004.

On January 24, 2005, Stewart filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. Counsel was appointed and subsequently filed an amended petition as well as a second amended petition on Stewart's behalf. On October 28, 2005, the PCRA court denied Stewart's petition without holding an evidentiary hearing. On August 10, 2006, the Superior Court affirmed the denial of Stewart's PCRA petition. Commonwealth v. Stewart, No. 3079 EDA 2005 (Pa. Super. Aug. 10, 2006) (unpublished memorandum), attached as Ex. "K" to Respondents' Answer. Stewart filed a timely petition for allowance of appeal in the Pennsylvania Supreme Court which was denied on January 23, 2007. Commonwealth v. Stewart, No. 737 MAL 2006 (Pa. Jan. 23, 2007), attached as Ex. "M" to Respondents' Answer.

On August 27, 2007, Stewart filed a second PCRA petition. On November 8, 2007, the PCRA court dismissed Stewart's PCRA petition as untimely.*fn1 The Pennsylvania Superior Court affirmed the dismissal of the PCRA petition on October 28, 2008. Commonwealth v. Stewart, 3088 EDA 2007 (Pa. Super. Oct. 28, 2008) (unpublished memorandum), attached as App. "Q" to Respondents' Answer.

On November 17, 2008,*fn2 Stewart filed the instant petition for a federal writ of habeas corpus claiming:

1) ineffective assistance of counsel for failing to object to improper remarks made by the prosecutor;

2) his Fifth Amendment and due process rights were violated by the admission of evidence derived from suggestive identification procedures;

3) his constitutional rights were violated when he was forced to participate in a line-up wherein he was placed between two (2) police officers; and

4) prosecutorial misconduct.

Respondents' answer, (Doc. No. 14), asserts that Stewart is not entitled to federal habeas relief because his petition is untimely, and that, in the alternative, his ...


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