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Graves v. Martinez

August 20, 2010

RAYNARD GRAVES
v.
RICARDO MARTINEZ, ET AL.



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

MEMORANDUM RE: PETITIONER'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT & RECOMMENDATION

I. INTRODUCTION

Petitioner, Raynard Graves, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 4). The undersigned referred the case to Magistrate Judge Henry S. Perkin for a Report and Recommendation ("R & R") on the merits. Magistrate Judge Perkin filed his R & R on February 24, 2010 (Doc. 13), and presently before the Court is Petitioner's Objection to Report and Recommendation for Dismissal, which he filed on April 27, 2010.*fn1 (Doc. 18).

Upon independent and thorough review, and for the reasons stated below, the Court will deny Petitioner's objections and accepts Magistrate Judge Perkin's R & R.

II. BACKGROUND

A. Facts and Procedural History

After a jury trial from May 1, 1995 through May 3, 1995 before the Honorable Gary S. Glazer of the Court of Common Pleas of Philadelphia County, Petitioner was found guilty of aggravated assault, reckless endangerment, and firearms violations.*fn2 After a jury trial on May 17, 1995, also before Judge Glazer, Petitioner was found guilty of four counts of robbery and possessing an instrument of crime.*fn3 Petitioner was sentenced to 52.5 to 105 years in prison by Judge Glazer on June 30, 1995. The Pennsylvania Superior Court affirmed the sentence on May 16, 1997. Commonwealth v. Graves, No. 2484 EDA 1995 (Pa. Super. 1995). On March 16, 1998, the Pennsylvania Supreme Court denied review. Commonwealth v. Graves, No. 281 E.D. Allocatur Docket 1997.

On March 19, 1999, Petitioner filed a pro se petition for writ of habeas corpus in federal court. Petitioner, however, did not file his petition with the standard 28 U.S.C. § 2254 form, as required by Local Rule of Civil Procedure 9.3, and was ordered by the Honorable Franklin S. Antwerpen to file the correct form within sixty days. Petitioner filed the form on August 2, 1999, twenty-four days late. In addition, Petitioner wrote "See Attachment" where the most crucial information was requested, in violation of Local Rule 9.3. Consequently, Judge Van Antwerpen entered an order dismissing the petition on August 4, 1999.

On December 27, 2007, Petitioner filed a pro se petition for state post-conviction relief pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. § 9541 et seq. Counsel was appointed, but after reviewing the record, she advised Petitioner and the court in a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), that Petitioner's claims were untimely and thus, there were no other issues of arguable merit which could be raised in an amended petition. The PCRA court dismissed the petition on November 5, 2008. Commonwealth v. Graves, No. 00861 October Term, 1994 (Phila. C.C.P. Nov. 5, 2008). Petitioner timely appealed the PCRA court's dismissal. Subsequently, on August 18, 2009, the Pennsylvania Superior Court affirmed the denial of Petitioner's PCRA petition as untimely. Commonwealth v. Graves, No. 3331 EDA 2008 (Pa. Super. 2009). Petitioner did not file a petition for allowance of appeal in the Pennsylvania Supreme Court.*fn4

Petitioner executed his pro se Petition for Writ of Habeas Corpus in federal court on September 8, 2009, and it was filed with the Clerk of Court on September 14, 2009. By Order entered on November 4, 2009, the undersigned dismissed the Petition without prejudice as defective for several reasons, namely: (1) it appeared to be a consolidated petition and therefore was improper, as each conviction must be attacked separately; (2) it appeared that Petitioner already filed petitions for habeas relief which attacked a 1994 conviction for aggravated assault and a 1995 federal conviction for robbery; and (3) Petitioner had not used the Court's current forms. Petitioner was furnished with a blank copy of the Court's current § 2254 petition form and a form application to proceed in forma pauperis.

Petitioner executed the revised pro se Petition for Writ of Habeas Corpus on November 12, 2009, and it was filed with the Clerk of Court on November 18, 2009. Petitioner cited several grounds for relief in his Petition, specifically: (1) "Jury error - protection defense disallowed"; (2) "Jury instruction error - elements of conspiracy"; (3) "Lack of jurisdiction - due to incompetent complainant"; (4) "Fifth Amendment violation - denied fair trial"; (5) "Defendant was denied the right to Confrontation"; (6) "Trial Court erroneously rules that Motion for relief under the 'Miscarriage of Justice' clause was untimely, and that 'Habeus [sic] relief is not available from the Commonwealth'"; (7) "Both Counsels were ineffective for allowing the violation stated in complaint #6"; and (8) "Council [sic] appointed to the PCRA claim was ineffective."

The Commonwealth filed its Response to the Petition on February 16, 2010. (Doc. 12). The government argued that the Petition should be denied because it is time barred. Petitioner did not offer any submission in response.

B. Summary of the Magistrate Judge's R & R

Magistrate Judge Perkin issued his R & R on February 24, 2010, recommending that the Petition be dismissed as untimely filed. Magistrate Judge Perkin first determined that the Petition was not barred as a second or successive petition under 28 U.S.C. § 2244(b), as Petitioner's 1999 habeas petition was dismissed on a procedural basis. Magistrate Judge Perkin concluded, however, that the Petition is time barred in its entirety under the statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 2244(d). (Doc. 13 at 16). Magistrate Judge Perkin found that Petitioner's conviction became final on June 14, 1998, upon the expiration of his time for seeking review of his direct appeal in the United States Supreme Court, and the statute of limitations began to run on that date. Accounting for periods of statutory tolling, Magistrate ...


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