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Parrish v. Commonwealth

September 29, 2010

DONTE PARRISH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, ET AL., RESPONDENTS



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Donte Parrish ("Petitioner" or "Parrish"), an inmate presently confined at the Federal Correctional Institution Gilmer ("FCI Gilmer") in Glenville, West Virginia, commenced this pro se action by filing a Petition for Writ of Habeas Corpus under the provisions of 28 U.S.C. § 2254. (Doc. 1.) He challenges his 2003 conviction in the York County Court of Common Pleas. Presently before the Court is a Motion filed on behalf of Respondents requesting that the Petition be dismissed as untimely. For the reasons set forth herein, the Motion will be granted, and the Petition will be dismissed.

I. FACTUAL BACKGROUND

In their brief in support of the instant Motion to Dismiss, Respondents summarize the Affidavit of Probable Cause that formed the basis for Parrish's arrest as follows:

On September 19, 2002, at 2:57 AM, Officers from the York City Police Department were dispatched to the area of the 1st block of South Street for a call involving an assault with a firearm.Upon arriving on scene, a witness stated that the suspect was running south on South Court Street. The Officers turned the vehicle around onto Moul Lane (the alley between South Court Street and South Duke Street) and spotted the defendant Donte Parrish running south.

The defendant entered a breezeway at 447 S. Duke Street, and the officers caught him on the other side of the breezeway on South Duke St. at E. Charles Lane. The defendant initially gave his name as 'Jamal Harris' however officers recognized the defendant as Donte Parrish. Upon searching the defendant they located a small green baggie containing crack cocaine. The officers returned to the breezeway at 447 S. Duke Street, and located another small green baggie containing crack cocaine along with two larger clear baggies containing crack cocaine, and a loaded .32 caliber revolver. (Doc. 11, Brief, at 8*fn1 .)

On August 12, 2003, Parrish pled guilty before the Honorable John S. Kennedy in the York County Court of Common Pleas to charges of False Identification to Law Enforcement and Possession of a Controlled Substance With the Intent to Deliver ("PWID"), and pled no contest to the charge of Possession of a Firearm Without a License. (Id. at 6 ¶ 1; Doc. 11-2 at 4-11, Transcript of Guilty Plea Hearing; Doc. 11-2 at 12-20, Written Plea Colloquy.) Parrish was sentenced to a sixteen (16) to sixty (60) month term of incarceration for PWID; a twelve (12) to twenty-four (24) month term of incarceration for Possession of a Firearm; and a six (6) to twelve (12) month term of incarceration for False Identification to Law Enforcement. (Doc. 11 at 6 ¶ 2; Doc. 11-2, Transcript of Guilty Plea Hearing, at 10-11; Commonwealth v. Parrish, Docket No. CP-67-CR-0000128-2003, at 3*fn2 .) The sentencing court directed that the three (3) sentences run concurrent for an aggregate sentence of sixteen (16) to sixty (60) months. (Id.)

Parrish did not file a direct appeal from his judgment of sentence. (Doc. 11 at 6 3;Commonwealth v. Parrish, Docket No. CP-67-CR-0000128-2003.) On May 24, 2005, Parrish filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541, et seq. ("PCRA Petition"). (Doc. 11 at 7 ¶ 6; Commonwealth v. Parrish, Docket No. CP-67-CR-0000128-2003, at 8.) On July 13, 2005, he filed an amended counseled petition. (Doc. 11 at 7 ¶ 6; Commonwealth v. Parrish, Docket No. CP-67-CR-0000128-2003, at 9; Doc. 11-2 at 21-22, Amended PCRA Petition.) However, on August 31, 2005, Parrish filed an Authorization in which he stated that he wished to withdraw his PCRA petition and understood that it would be withdrawn with prejudice. (Doc. 11 at 7 ¶ 6; Doc. 11-2 at 24, 8/31/05 Authorization.)

II. PROCEDURAL BACKGROUND

On July 6, 2010, Parrish filed the instant Petition (Doc. 1), and a Memorandum of Law (Doc. 2). In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000) (requiring district courts to provide notice to pro se habeas petitioners of the implications of 28 U.S.C. § 2244(b) before ruling on their petitions), by Order dated July 9, 2010, Parrish was advised that (1) he could have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition absent certification by the Court of Appeals, or (2) withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (See Doc. 4.) He was directed to file his Notice of Election form indicating his choice within forty-five (45) days from the date of the Order. (See id.)

Parrish filed his Notice of Election on July 16, 2010. (Doc. 5.) Because it appeared that the Petition may be barred by the one (1) year statute of limitations set forth in 28 U.S.C. § 2244, by Order dated July 19, 2010, we directed Respondents to file a response solely addressing the Petition's timeliness. (Doc. 6.) The Order also provided that Parrish could file a reply to Respondents' submission within fourteen (14) days of its filing in accordance with United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005). (Id.)

On July 27, 2010, Respondents filed the instant Motion requesting that we dismiss the Petition as untimely. (Doc. 7.) In accordance with a direction from the Clerk of Court, Respondents also filed a proposed order to accompany their Motion. (Doc. 8.) Parrish apparently believed that the proposed order was an Order entered by this Court, and that his Petition had been dismissed, and therefore, on August 9, 2010, he filed a Motion for a Certificate of Appealability. (Doc. 9.) By Order dated August 10, 2010, we clarified that the Petition had not been dismissed, denied the Motion as premature, and directed Respondents to file a brief in support of their Motion to Dismiss within fourteen (14) days. (Doc. 10.)

Respondents filed their brief (Doc. 11) and supporting materials (Doc. 11-2) on August 17, 2010. Parrish filed his brief in opposition (Doc. 12) on September 3, 2010. Accordingly, ...


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