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Trainor v. Rozum

July 30, 2010

FRANK TRAINOR, PETITIONER,
v.
SUPERINTENDENT ROZUM, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Baxter

District Judge McLaughlin

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Respondents' motion to dismiss [Document # 13] be granted, that the Petition for Writ of Habeas Corpus be dismissed as untimely, and that a certificate of appealability be denied.

II. REPORT

A. Relevant Procedural and Factual History*fn1

This is a petition for writ of habeas corpus filed by a state prisoner incarcerated at the State Correctional Institution at Somerset, Pennsylvania, where he is serving a sentence of 36 to 84 months of imprisonment, as a result of being found guilty of three counts of Criminal Attempt to Lure a Child into a Motor Vehicle and one count of Stalking. (Petition at ¶¶ 3-5). The sentence was imposed by the Erie County Court of Common Pleas on December 19, 2006. (Id. at ¶¶ 1-2). Petitioner filed a post-sentence motion on December 27, 2006, which was denied on January 16, 2007. (Id. at ¶¶ 9(a) - (d)). Petitioner subsequently filed a direct appeal of his conviction to the Pennsylvania Superior Court, which affirmed the conviction on December 14, 2007. (Id. at ¶ 9(g)).

On February 26, 2008, Petitioner filed a petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA petition"), claiming ineffective assistance of trial counsel. This petition was dismissed without a hearing on May 16, 2008. (SCR 30).

The instant Petition was filed by Petitioner on November 12, 2009, and raises two ineffective assistance of counsel claims: (i) trial counsel "rendered ineffective assistance of counsel under the 6th and 14th amendments by failing to cross-examine and impeach the alleged victim in this case with her preliminary hearing testimony, and by failing to argue the victim's inconsistent statements in closing argument;" and (ii) trial counsel "rendered ineffective assistance of counsel under the 6th and 14th amendments by failing to contest the Commonwealth's burden of proof as it relates to the Commonwealth's alleged failure to establish specific dates for the offenses."

In response, Respondents have filed a motion to dismiss arguing that Petitioner's habeas petition was filed well beyond the expiration of the applicable one-year statute of limitations and, alternatively, is barred by the doctrines of exhaustion and procedural default. [Document # 13]. Petitioner has since filed a letter response to Respondents' motion to dismiss. [Document # 16]. This matter is now ripe for consideration.

B. Statute of Limitations

The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed under the one-year limitations period applicable to such petitions. The applicable statute reads:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...


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