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Jose Antonio Ramos v. Jerome Walsh

September 29, 2010

JOSE ANTONIO RAMOS, PETITIONER,
v.
JEROME WALSH, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge

District Judge Sean J. McLaughlin Magistrate Judge Susan Paradise Baxter

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

Petitioner Jose Antonio Ramos is state prisoner who is serving a sentence imposed by the Court of Common Pleas of Warren County on or around November 29, 1990, at Criminal Docket No. 334 of 1990 for a conviction of Involuntary Deviate Sexual Intercourse (IDSI) (victim less than 16 years old). Pending before this Court is his amended petition for a writ of habeas corpus [ECF No. 22]. He contends that his detention is unlawful and that he should be released from custody. The amended petition is at least the second petition for a writ of habeas corpus that he has filed with this Court in which he challenges the validity of the sentence imposed by the Court of Common Pleas of Warren County. Because he did not receive from the U.S. Court of Appeals for the Third Circuit an order authorizing this Court to consider this successive petition, as required by 28 U.S.C. § 2244(b)(3)(A), it is recommended that the amended petition be dismissed for lack of jurisdiction and that a certificate of appealability be denied.

II. REPORT

A.Relevant Background

On October 19, 1990, Petitioner pleaded guilty to IDSI before the Court of Common Pleas of Warren County. The court sentenced him on or around November 29, 1990 to 10-20 years of imprisonment, to run consecutive to a sentence imposed by the Court of Common Pleas of Erie County at Criminal Docket No. 1741 of 1986.

On August 26, 1992, the Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence. The Supreme Court of Pennsylvania denied a petition for allowance of appeal on June 7, 1993. Petitioner's judgment of sentence became final on or around September 7, 1993. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review, including the time for filing a writ of certiorari in the U.S. Supreme Court).

During the ensuing years, Petitioner repeatedly sought judicial relief from both the state trial and appellate courts through numerous pleadings and correspondence. When those efforts were unsuccessful, he sought federal habeas relief from this Court. Specifically, in February of 1999, Petitioner filed a petition for a writ of habeas corpus with this Court in which he challenged the judgment of sentence imposed by the Court of Common Pleas of Warren County. That case was docketed as Jose Antonio Ramos v. Philip L. Johnson, Civil Action No. 99-182 (Erie), assigned to the Honorable Sean J. McLaughlin, and referred Magistrate Judge Ila Jeanne Sensenich. On April 2, 2001, this Court issued a Memorandum Order in which it, upon the Magistrate Judge's Report and Recommendation, denied the petition as untimely and denied a certificate of appealability. The Third Circuit Court of Appeals denied Petitioner's subsequent application for a certificate of appealability.

Petitioner continued his efforts in state court to get his judgment of sentence vacated. For example, on or around October 1, 2008, he filed with the Court of Common Pleas of Warren County his third state petition for a writ of habeas corpus, which the court denied the next day. On June 3, 2009, the Superior Court of Pennsylvania quashed his subsequent appeal.

In the pending amended petition for a writ of habeas corpus (ECF No. 22), Petitioner once again challenges his current confinement, which is the result of the judgment of sentence imposed by the Warren County Court of Common Pleas at Criminal Docket No. 334 of 1990. He claims that his confinement is unlawful because, inter alia, his right to a speedy trial was violated. He also claims his double jeopardy rights were violated because the underlying charges at Criminal Docket No. 334 of 1990 were the same charges that had been nolle prossed by the Warren County District Attorney in October of 1987 at Criminal Docket No. 225 of 1986.

B. Discussion

This proceeding is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"). That statute provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall 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 ...


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