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Tait v. Walsh

July 1, 2010

KAMAL TAIT, DY-8544, PETITIONER,
v.
SUPT. WALSH, ET AL., RESPONDENTS.



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

Memorandum and Order

Kamal Tait has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Tait is presently incarcerated at the State Correctional Institution at Dallas serving a twenty-eight and a half to fifty-seven year sentence imposed following his conviction by a jury of third degree murder, accidents involving death and personal injury, homicide by vehicle, fleeing or attempting to elude police, possessing a firearm without a license, recklessly endangering another person, simple assault, persons not to possess firearms, driving under the influence of alcohol or a controlled substance, homicide by vehicle while driving under the influence and several summary offense. This sentence was imposed on January 13, 2000.*fn1

An appeal was taken to the Superior Court in which the issues presented were:

I. Whether the evidence was insufficient to sustain a finding of malice, an element of third degree murder.

II. Whether the trial court erred in allowing testimony regarding possible prior bad acts committed by Mr. Tait, which were admitted for no purpose other than to show his propensity or character for such conduct. Alternatively, counsel was ineffective for failing to request a cautionary instruction.*fn2 On November 1, 2001, the judgment of sentence was affirmed.*fn3 These same issues were raised in a petition for allowance of appeal to the Pennsylvania Supreme Court*fn4 and leave to appeal was denied by the Pennsylvania Supreme Court on May 29, 2002.*fn5

On September 24, 2002, Tait filed a pro-se post-conviction petition and a counseled amended petition was subsequently filed.*fn6 That petition was dismissed on March 14, 2007.*fn7

An appeal was taken to the Superior Court in which the issues presented were:

1. Was it error for the PCRA Court to find all of the petitioner's issues were waived for failure to timely file a statement pursuant to Pa.R.A.P. 1925(b)?

2. Was it error for the PCRA Court to dismiss the amended petition after the petitioner pled and proved grounds for relief?*fn8 On November 17, 2008, the denial of post conviction relief was affirmed.*fn9

A petition for allowance of appeal by the Pennsylvania Supreme Court was filed in which the sole issue presented was:

1. Whether trial counsel and appellate counsel were ineffective for failing to litigate and preserve a claim that a change of venue was necessary to protect Petitioner's right to a fair trial where the pretrial publicity was inherently and permanently prejudicial?*fn10

On April 29, 2009, leave to appeal was denied.*fn11

In the instant petition execute on November 30, 2009, Tait contends he is entitled to relief ...


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