IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
December 21, 2010
DONALD ROY EDWARDS, PETITIONER,
MICHAEL CURLEY, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Mitchell, M.J.
MEMORANDUM and ORDER
Donald Roy Edwards has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
Edwards is presently incarcerated at the Muskegon Correctional Facility in Muskegon Heights, Michigan, serving a twenty to forty year sentence imposed following his conviction, by a jury, of third-degree murder at No. CC 20000887 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on August 8, 2002.*fn1
An appeal was taken to the Superior Court in which the issues presented were:
1 Did the trial court err in permitting Detective Richard McDonald to testify regarding Appellant's alleged statement to City of Pittsburgh Homicide Detective Robert McCabe on June 13, 2000? Was trial counsel ineffective for failing to attempt to bar the testimony of Detective McDonald?
2. Was trial counsel ineffective for failing to file a Motion to Suppress Appellant's alleged statement to Detective McCabe since Appellant alleged that he was never Mirandized, that he never told McCabe or anyone else that he taped victim Chismar after Kaminski began beating him or that he left the tape on Chismar after the beating began, and, no record of the interview existed after Detective McCabe passed away (other than Detective McDonald's alleged presence at and memory of the interview two years after it was conducted?).
3. Did the prosecutor commit prosecutorial misconduct during her closing argument when she stated that Appellant told McCabe and McDonald that, "I tied [Chismar] up. I saw [Kaminski] strangle him. I saw him beat him and then I untied him and went to bed."? Furthermore, she severely magnified the error and prejudice by a further comment shortly thereafter, and, trial counsel was ineffective for failing to object to the statements by the Prosecutor.*fn2
On May 23, 2003, the judgment of sentence was affirmed. A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which these same issues were presented for review*fn3 , and on November 6, 2003, the petition was denied.*fn4
On December 28, 2004, Edwards filed a pro se post-conviction petition.
Counsel was appointed to represent him, an amended counseled petition
was filed and relief was denied on November 23, 2005.*fn5
No appeal was pursued.*fn6
On January 3, 2006, Edwards filed a second pro se post-conviction petition. Relief was denied on February12, 2007.*fn7 An appeal was taken to the Superior Court in which the issues presented were:
A. The trial court erred as a matter of law for not finding trial counsel ineffective for failing to specifically object under Pa.R.E. 804(b) against the admission of severely prejudicial evidence.
B. The trial court erred as a matter of law for not finding trial counsel ineffective for failing to specifically object to the hearsay testimony of detective McDonald under Pa.R.E. 1002 regarding the contents of defendant's original writing set forth in his Miranda waiver.*fn8
On November 24, 2009, the denial of post-conviction relief was affirmed. *fn9 And leave to appeal to the Pennsylvania Supreme Court was denied on August 26, 2010.*fn10 In denying relief, the Superior Court observed:
The record reveals that appellant was originally sentenced on August 8, 2002. From that sentence he filed a direct appeal, and this Court affirmed the judgment of sentence on May 23, 2003. The Pennsylvania Supreme Court denied allowance of appeal on November 6, 2003. As a result, the judgment of sentence became final on February 4, 2004, at the expiration date of the 90 day period for seeking a writ [of] certiorari from the United States Supreme Court. Consequently, the statutory one year time period for filing a petition under the PCRA expired on February 4, 2005. See: 42 Pa.C.S. §9545(b)(3). However, the PCRA petition in this case was not filed until January 3, 2006. Therefore, the petition was untimely on its face, and was not cognizable unless appellant was permitted an exception to the time bar as provided in section 9545(b)(1)(i)-(iii).
[S]ince we agree with the position espoused by appointed counsel and the Commonwealth, namely that the underlying PCRA petition was untimely filed, and that appellant cannot establish any of the exceptions to the statute's time bar, we affirm, albeit on different grounds, the order of the trial court dismissing the petition.*fn11
It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:
(1) A 1-year period of limitation shall apply to the 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 was prevented from filing by such State action;
(C) The date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) The date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(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 toward any period of limitation under this subsection.
In the instant case, the Pennsylvania Superior Court affirmed the judgment of sentence on May 23, 2003 and leave to appeal was denied by the Pennsylvania Supreme Court on November 6, 2003. In Kapral v. United States, 166 F.3d 565 (3d Cir.1999), the Court noted that in the absence of the filing of a petition for discretionary review, the judgment becomes final when the time period in which to seek that review expires. Thus, the petitioner's conviction became final on February 4, 2004. The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year federal statute of limitations is April 24, 1996 and thus it is applicable here. The petitioner file a timely post-conviction petition on December 28, 2004 and after its denial on November 23, 2005, he sought no further relief until a "not properly filed" second post-conviction relief petition was filed on January 3, 2006 or considerably after the one year period in which to seek state post-conviction relief had expired.*fn12 In reviewing this untimely application, the Superior Court concluded that no recognized exception to the time bar existed, and for this reason the petition was time barred in the state courts.
The instant petition was executed on October 7, 2010, or considerably beyond the one year period in which to seek federal relief expired.*fn13 However, the petitioner seeks to excuse this delay by arguing that:
Mr. Edwards' petition for habeas corpus relief should be considered filed in a timely manner d[ue] to all the proceedings the petitioner has sought under the post-conviction motion for it is because of those motion this petition is being filed now.*fn14
It appears that Edwards seeks to base an exception to the federal statute of limitations on the delay by the state courts in disposing of his post-conviction petition. However, this argument is unavailing in that the petitioner himself defaulted in seeking timely post-conviction relief and the period of time between when his conviction became final and the initiation of his second post-conviction filing was considerably in excess of the one year period permitted under both state and federal law. It is only if this second petition was "properly filed" which it was not, that his petition here would be timely.
We further note that the Superior Court concluded that no reasonable grounds existed for Edwards' failure to seek timely relief and this conclusion is entitled to a presumption of correctness here. 28 U.S.C. §2254(e)(1). Additionally, we observe that the only argument which the petitioner urges for his delay in seeking relief here is based on the state court delays. This argument is patently frivolous.
Accordingly, because it is time barred, the petition of Donald Roy Edwards for a writ of habeas corpus will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
An appropriate Order will be entered.
AND NOW, this 21st day of December, 2010, for the reasons set forth in the foregoing Memorandum,
IT IS ORDERED that the petition of Donald Roy Edwards for a writ of habeas corpus is DISMISSED and a certificate of appealability is DENIED.
Robert C. Mitchell United States Magistrate Judge