The opinion of the court was delivered by: Mitchell, M.J.
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. ...