Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Short v. Mazurkiewicz

October 19, 2010

DEVELL SHORT, PETITIONER,
v.
JOSEPH MAZURKIEWICZ; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION

Petitioner, Devell Short, a state prisoner incarcerated at the State Correctional Institution at Greensburg, Pennsylvania, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition should be dismissed as untimely because it was not filed within the one-year limitations period provided for under 28 U.S.C. § 2244(d).

A. Relevant Procedural History

On June 28, 1991, following a jury trial in the Court of Common Pleas of Allegheny County, Pennsylvania, Petitioner was found guilty of murder in the first degree and related firearm charges and was sentenced to the mandatory term of life imprisonment without parole. Petitioner filed a timely notice of appeal and on October 20, 1994, the Superior Court of Pennsylvania affirmed his judgment of sentence (Commw. Ex. 24). Petitioner filed a timely Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied on March 15, 1995.

On July 9, 1996, Petitioner filed his first pro se petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9542. On November 24, 1998, the PCRA Court dismissed Petitioner's PCRA Petition on the merits (Commw. Ex. nos. 45 & 47). Petitioner filed a timely Notice of Appeal and on November 9, 1999, the Superior Court of Pennsylvania affirmed the Trial Court's determination denying Petitioner PCRA relief (Commw. Ex. 52). On April 4, 2000, the Supreme Court of Pennsylvania denied Petitioner's Petition for Allowance of Appeal. (Commw. Ex. 54).

On April 4, 2001, Petitioner, through Chris Rand Eyster, Esquire, filed a second Motion for Post Conviction Collateral Relief claiming that a witness had recanted his testimony. On February 25, 2002, this Petition was dismissed as untimely (Commw. Ex. 60). Petitioner filed a timely Notice of Appeal and on July 3, 2003, the Superior Court of Pennsylvania affirmed the Trial Court's determination denying Petitioner PCRA relief (Commw. Ex. 67). Petitioner did not file a petition for allowance of appeal.

On November 26, 2003, Petitioner, through Attorney Eyster, filed a third Motion for Post Conviction Collateral Relief claiming that on October 25, 2003, he was made aware of a new eyewitness. On February 20, 2004, this Petition was dismissed as untimely because Petitioner failed to establish that the evidence could not have been obtained earlier through the exercise of due diligence (Commw. Ex. 72). Petitioner filed a timely Notice of Appeal and on May 18, 2005, the Superior Court of Pennsylvania affirmed the Trial Court's determination (Commw. Ex. 79). Petitioner filed a petition for allowance of appeal, which was denied by the Supreme Court of Pennsylvania on November 1, 2005 (Commw. Ex. 82).

On July 17, 2007, Petitioner, through Attorney Eyster, filed a fourth Motion for Post Conviction Collateral Relief alleging judicial bias due to new information he received from a juror in Petitioner's trial. On November 16, 2007, this Petition was dismissed as untimely because Petitioner failed to establish that the evidence could not have been obtained earlier through the exercise of due diligence (Commw. Ex. 86). Petitioner filed a timely Notice of Appeal and on February 17, 2009, the Superior Court of Pennsylvania affirmed the Trial Court's determination (Commw. Ex. 94). Petitioner did not file a petition for allowance of appeal.

Petitioner's federal Petition for Writ of Habeas Corpus was executed on February 11, 2010.

B. Time Period for Filing Federal Habeas Corpus Petitions

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. In this regard, the federal habeas corpus laws impose a one-year limitations period applicable to state prisoners, which provides as follows.

(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 time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.