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Kefauver v. Rozum

August 30, 2010

MICHAEL E. KEFAUVER, SR.. PETITIONER
v.
SUPT. GERALD ROZUM, RESPONDENT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

On February 5, 2010, petitioner Michael E. Kefauver, Sr. ("petitioner" or "Kefauver") filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his January 12, 2001, Pennsylvania convictions for Sexual Assault and Indecent Assault. (Doc. 1.) A timely response to the petition was filed. (Doc. 19.) Therein, respondent moved to dismiss the petition as untimely filed. (Id. at 4.) Kefauver maintains that the petition is timely. (Doc. 25.) Following careful consideration of the parties' submissions, and for the reasons discussed below, the Court will grant respondent's motion to dismiss because the petition is not timely filed. See 28 U.S.C. § 2244(d).

I. Background

On July 6, 1999, Kefauver was arrested in York County, Pennsylvania, and charged with rape, involuntary deviate sexual intercourse, sexual assault and indecent assault. (Doc. 19-6, at 193.) His first trial held in January 2000 was declared a mistrial due to a hung jury. (Id.) A second trial took place in March 2000, which also ended in a mistrial after the victim revealed to the jury that Kefauver had been in jail. (Id.) His third jury trial took place in January 2001 and, on January 12, 2001, he was convicted of sexual assault and indecent assault in the York County Court of Common Pleas. (Doc. 19-6, at 71.) He was sentenced on March 5, 2001, to an aggregate sentence of 6-12 years incarceration. (Id.)

On March 20, 2001, Kefauver filed a direct appeal with the Pennsylvania Superior Court.*fn1 On September 5, 2002, the Superior Court of Pennsylvania affirmed the trial court. He did not seek review in the Supreme Court of Pennsylvania.

On December 13, 2002, Kefauver filed a timely petition for post conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Doc. 19-6, at 194.) An evidentiary hearing was held on July 25, 2003, and on January 5, 2005, the court concluded that trial counsel was ineffective for failing to call a defense witness and granted PCRA relief in the form of a new trial.*fn2 (Id.) The Commonwealth filed a timely appeal. On November 29, 2005, the superior court granted the appeal and reversed the PCRA court decision, remanding the matter for the reinstatement of petitioner's judgment of sentence. The superior court concluded that Kefauver had failed to demonstrate that the witness was available and willing to testify at trial. (Id. at 194-95.) On January 3, 2006, Kefauver filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on May 15, 2006. An aggregate sentence of fifty-seven months to twelve years was imposed on June 12, 2006.*fn3

On June 23, 2006, Kefauver filed a second PCRA petition which was rejected as untimely by order of August 4, 2006. (Doc. 19-6, at 196.) Kefauver filed a third PCRA petition on June 4, 2007. (Id.) On June 29, 2007, he was advised that his petition would be dismissed without further proceedings as not timely filed because "[u]nder 42 Pa.C.S.A. § 9542 et seq. and 42 Pa.C.S.A. § 9545(b)(1) and (2) his petition must have been filed by September 5, 2003." (Id. at 71-74.) The petition was summarily dismissed on July 18, 2007. (Id. at 197.) He sought, and was denied, reconsideration on August 16, 2007.

He filed a notice of appeal on August 20, 2007. (Id.) On August 24, 2007, the PCRA court entered an order declaring that the notice of appeal was untimely filed. On September 26, 2007, a notice of appeal of the August 24, 2007, order was filed. The appeals were consolidated and, on June 4, 2008, the superior court issued an opinion affirming the PCRA court's dismissal of the petition as untimely. Petitioner filed a petition for allowance of appeal to the supreme court, which was denied on December 2, 2008. (Doc. 19-6, at 251.)

The instant petition was filed on February 5, 2010. Petitioner also filed a petition pursuant to 28 U.S.C. § 2254 in November 2009, but elected to voluntarily withdraw it. Kefauver v. Rosum, Civil Action No. 1:09-CV-2158, Doc. 10.

II. Discussion

The court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d) (1). A state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

(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 time for seeking such review. . . .

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...


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