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Larry Edward Kelley, Jr v. Debra K. Sauers

June 2, 2011

LARRY EDWARD KELLEY, JR., PETITIONER,
v.
DEBRA K. SAUERS, ET AL., RESPONDENTS.



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

MEMORANDUM and ORDER

Larry Edward Kelley, Jr. has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. Kelly is presently serving a three and a half to seven year sentence imposed following his conviction, by a jury, of theft of leased property at No. CP-26-282 of 2003 in the Court of Common Pleas of Fayette County, Pennsylvania. This sentence was imposed on November 14, 2005.*fn1 Neither appellate nor post-conviction remedies were pursued.*fn2

In a petition executed on May 10, 2011, Kelley contends he is entitled to relief on the following grounds:

U.S. Constitutional Bill of rights Amendments V, VI, VII, VIII (1791), and Amendment XIV (1868)(1). A trial by jury in absentia, sentence greater than guidelines.*fn3

Thus, it would appear that the petitioner here is contending that he is entitled to federal relief as a result of having been tried in absentia, and being sentenced to a term greater than provided for in the relevant guidelines.

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, sentence was imposed on November 14, 2005 and no appellate relief was sought. Thus Kelley‟s sentence became final on December 14, 2005 when the time in which to appeal expired.*fn4 The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here.

Because the petitioner did not pursue remedies in the appellate courts of Pennsylvania, and did not seek relief here until May 10, 2011 or over five years after his conviction ...


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