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Brewington v. Klopotoski

July 6, 2010

KEITH BREWINGTON, PETITIONER,
v.
MICHAEL D. KLOPOTOSKI, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Norma L. Shapiro, S.J.

MEMORANDUM

Petitioner Keith Brewington ("Brewington"), a prisoner at the State Correctional Institution at Dallas, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 on July 15, 2009. The petition was referred to Chief United States Magistrate Judge Thomas J. Rueter ("Chief Magistrate Judge Rueter"), who issued a Report and Recommendation ("R&R") that the petition be dismissed as untimely.

Brewington, objecting to the R&R, asserts that: (1) the R&R fails to state the true history of his case; (2) the present habeas petition should relate back to the petition filed at Civil Action No. 01-1172; and (3) this petition is timely filed as a result of statutory and equitable tolling.

The R&R will be adopted and the petition will be dismissed.

I. FACTS AND PROCEDURAL HISTORY

Brewington argues that Chief Magistrate Judge Rueter did not fairly set forth the factual and procedural history of his case. After careful and independent consideration of the petition for writ of habeas corpus, the government's response thereto, and the state court record; and after review of the R&R of Chief Magistrate Judge Rueter and Brewington's objections thereto, this objection will be denied.

On June 7, 1991, following a jury trial before the late Honorable Juanita Kidd Stout in the Court of Common Pleas of Philadelphia County, Brewington was convicted of first degree murder and conspiracy to commit first degree murder. Brewington was sentenced to life imprisonment on the murder count, and a concurrent term of five to ten years imprisonment on the conspiracy count. His direct appeal was unsuccessful. Commonwealth v. Brewington , 740 A.2d 247 (Pa. Super. Ct. 1999). The Pennsylvania Supreme Court denied Brewington's request for discretionary review on May 4, 2000. Commonwealth v. Brewington , 758 A.2d 660 (Pa. 2000) (table). Brewington did not petition for writ of certiorari with the United States Supreme Court.

On June 15, 2000, Brewington filed a pro se petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. §§ 9541, et seq. Believing the PCRA proceedings were unreasonably delayed, Brewington filed a pro se petition for writ of habeas corpus before this court on February 20, 2001. Petition, Brewington v.Varner , No. 01-1172 (E.D. Pa.). Because Brewington's PCRA petition was still pending before the state courts, this court dismissed the federal habeas petition without prejudice for failure to exhaust state court remedies. Order, Brewington v. Varner , No. 01-1172 (E.D. Pa. Feb. 15, 2002).

In his PCRA proceeding, Brewington was afforded the assistance of court-appointed counsel, and an amended petition was filed on February 7, 2002. Brewington asserts that he was unaware of the amended petition, and that he did not consent to the elimination of claims by court-appointed counsel.

On November 20, 2002, the PCRA court dismissed Brewington's petition on the merits. The Superior Court affirmed the dismissal on April 13, 2004. Commonwealth v. Brewington , 852 A.2d 1244 (Pa. Super. Ct. 2004) (table).

On May 11, 2004, Brewington filed a second pro se PCRA petition. Brewington retained private counsel, and counsel filed a Finley "no-merit" letter.*fn1 The PCRA court dismissed the petition as untimely. Order, Commonwealth v. Brewington , No. 1989-0302 (Ct. Com. Pl. Phila. April 15, 2005). The Superior Court affirmed on June 23, 2006. Commonwealth v. Brewington , No. 955 EDA 2005 (unpublished) (Pa. Super. Ct. June 23, 2006).

On August 28, 2006, Brewington filed his third PCRA petition. The PCRA court dismissed the petition as untimely on June 1, 2007. Order, Commonwealth v. Brewington, No. 1989-0318 (Ct. Com. Pl. Phila. June 1, 2007). The Superior Court affirmed on February 5, 2008. Commonwealth v. Brewington , No. 1893 EDA 2007 (unpublished) (Pa. Super. Ct. Feb. 5, 2008).

Brewington filed the instant petition for writ of habeas corpus on July 15, 2009 asserting four grounds for relief: (1) prosecutorial misconduct; (2) trial court error; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel. Chief Magistrate Judge Rueter filed an R&R recommending the petition be dismissed as untimely.

II. STANDARD OF REVIEW

Federal courts have jurisdiction over petitions for writs of habeas corpus challenging state confinement in violation of the United States Constitution. 28 U.S.C. ยง 2241. A district court reviews de novo those portions of a magistrate judge's report and ...


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