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Cookman v. Barone

January 26, 2010

JOHN J. COOKMAN, PETITIONER,
v.
MICHAEL BARONE, ET AL., RESPONDENTS.



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

MEMORANDUM

I. Introduction

Petitioner, John Joseph Cookman ("Petitioner"), filed a federal Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The undersigned referred the case to Magistrate Judge Lynne A. Sitarski for a Report and Recommendation ("R&R") on the merits. Magistrate Judge Sitarski filed her R&R on June 12, 2009 (Doc. No. 32), and presently before the Court are Petitioner's Objections to the R&R, which he timely filed on July 6, 2009 (Doc. Nos. 35, 37).*fn1

Upon independent and thorough review, and for the reasons stated below, this Court denies Petitioner's objections and accepts Magistrate Judge Sitarski's R&R.

II. Background and Procedural History

According to the record before the Court, Petitioner was convicted on January 13, 1989 of attempted rape, attempted involuntary deviate sexual intercourse, indecent assault, terroristic threats, and simple assault. On June 13, 1989, the trial court sentenced Petitioner to eleven-andone-half to twenty-three months imprisonment, to be followed by twenty-three years of probation. Petitioner did not file a direct appeal.

Petitioner was paroled and placed on probation in 1990, but violated his probation on three separate occasions. On June 4, 2002, following his third parole violation, Petitioner was re-sentenced to eleven-and-one-half to twenty-three years in prison. Petitioner did not file a direct appeal of his re-sentencing.

On February 12, 2004, Petitioner filed a pro se Pennsylvania Post Conviction Relief Act ("PCRA") petition. On June 24, 2004, the PCRA court appointed counsel to represent Petitioner, but on September 16, 2004, Petitioner's counsel filed a "no merit" letter and petition to withdraw, wherein he advised the PCRA Court that Petitioner's PCRA petition was untimely filed and was not subject to any time bar exceptions. The PCRA court granted Petitioner's counsel leave to withdraw on November 8, 2004, and then dismissed the PCRA petition as untimely on December 3, 2004.

On January 3, 2005, Petitioner filed a PCRA appeal with the Pennsylvania Superior Court. On July 19, 2006, the Superior Court affirmed the PCRA court's dismissal, ruling that Petitioner's PCRA petition was "clearly untimely." On October 10, 2006, Petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court. On October 12, 2006, the Pennsylvania Supreme Court rejected this petition as untimely filed. The Court also denied a subsequent petition for allowance of appeal nunc pro tunc on August 23, 2007. On October 26, 2007, the Pennsylvania Supreme Court denied Petitioner's application for reconsideration.

On October 20, 2008, Petitioner filed the instant petition for writ of habeas corpus (Doc. No. 1), making the following ten claims:*fn2 (1) The trial court abused its sentencing discretion under Pennsylvania sentencing law; (2) the trial court abused its sentencing discretion under Pennsylvania sentencing law by sentencing consecutively on certain counts and not concurrently; (3) the trial court had no subject matter jurisdiction to re-institute charges; (4) trial counsel was ineffective in cross-examining a witness; (5) trial counsel was ineffective during the re-sentencing; (6) PCRA counsel was ineffective and a trial court should have appointed new PCRA counsel; (7) PCRA counsel was ineffective for not filing a petition nunc pro tunc to the Pennsylvania Superior and Supreme Courts; (8) there was layered ineffectiveness of counsel; (9) certain offenses should have merged under Pennsylvania law; and (10) the Pennsylvania Superior and Supreme Courts abused their discretion in the handling of Petitioner's PCRA petition and appeal.

The government responded to Mr. Cookman's petition on April 10, 2009 (Doc. No. 14), and Petitioner replied on June 8, 2009 (Doc. No. 31). As noted above, Magistrate Judge Sitarski filed her R&R on June 12, 2009 (Doc. No. 32), and Petitioner filed his Objections to the R&R, and additional Objections, on July 6, 2009 and July 17, 2009, respectively (Doc. Nos. 35, 37).

III. Parties' Contentions

A. Summary of Magistrate Judge's Report and Recommendations

The R&R found that Petitioner's habeas petition was time-barred in its entirety under the statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). According to the R&R, Petitioner's current incarceration resulted from his June 4, 2002 re-sentencing. Thus, because Petitioner did not file a direct appeal of his re-sentencing, his conviction became final on July 5, 2002 -- the date when the thirty (30) day period to file a direct appeal of his re-sentencing to the Pennsylvania Superior Court expired. Thus, the R&R determined that Petitioner's "judgment" became final for AEDPA purposes on July 5, 2002 -- the date both Petitioner's conviction and sentence became final. Accordingly, Petitioner needed to file his federal habeas petition no later than July 7, 2003 to comply with the requisite one-year limitations ...


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