The opinion of the court was delivered by: District Judge Nora Barry Fischer
Pending before the Court is Petitioner Kenneth Hairston's Motion For Extension Of Time To File a Petition For Writ Of Habeas Corpus [ECF No. 10]. Also before the Court is Hairston's Response, and Supplement thereto, to an Order from this Court directing him to show cause why this case should not be dismissed without prejudice while he exhausts his state court remedies [ECF Nos. 12 & 16], and the Commonwealth's Reply [ECF No. 17]. For the reasons set forth below, the Court will deny Hairston's motion for an extension and dismiss this case without prejudice.
On July 11, 2002, Hairston was sentenced to death in the Court of Common Pleas of Allegheny County following his conviction on two counts of first-degree murder in the killing of his wife and teenage son. The Pennsylvania Supreme Court affirmed his judgment of sentence on December 28, 2009. Commonwealth v. Hairston, 985 A.2d 804 (Pa. 2009). He raised the following four issues in that appeal:
(1) Were Appellant's state and federal constitutional rights to due process and against cruel punishments, as well as his right to a trial held in accordance with the Pennsylvania Rules of Evidence, violated when the prosecution was permitted to introduce, during Appellant's homicide trial, evidence revealing both the fact that Appellant was charged with the attempted gunpoint rape of his stepdaughter plus details regarding that incident?
(2) Were Appellant's state and federal constitutional rights to due process and against cruel punishments violated when he was convicted of First Degree Premeditated Murder by a jury that was erroneously deprived of the opportunity to instead convict him of the lesser offense of Second Degree Felony Murder?
(3) Were Appellant's state and federal constitutional rights to effective counsel, to due process, and against cruel punishment violated when current counsel ineffectively failed to assert, in both the Pa.R.Crim.P. 811 post-sentence motion and in the Pa.R.App.P.1925 concise statement that he filed on Appellant's behalf, the claim that trial counsel ineffectively failed to object to the prosecutor's inflammatory, misleading, and otherwise prejudicially improper penalty phase closing argument?
(4) Were Appellant's state and federal constitutional rights to due process and against cruel punishment, as well as his right to be sentenced in accordance with 42 Pa.C.S. § 9711, violated when the prosecution was permitted to present victim impact testimony from two non-family members, including one who testified about the impact that the decedents' deaths had on him?
Hairston, 985 A.2d at 808 (quoting Appellant's Brief).
In disposing of these claims, the Pennsylvania Supreme Court explained: "[Hairston] failed to file either post-sentence motions or an appeal until after the window for each had closed, and [he] never requested that the trial court reinstate his appeal rights nunc pro tunc. Consequently, . [Hairston] has waived the individual claims he brings before this Court, and the case is now before us under the limited scope of our automatic review." Id. at 805. See also id. at 808-09. It observed that Hairston's "claims may be pursued under [Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq.], as claims sounding in trial counsel's ineffectiveness or, if applicable, a statutory exception to the PCRA's waiver provision." Id. at 808 n.6 (internal citations and quotations omitted).
The Pennsylvania Supreme Court conducted the automatic review required by 42 Pa.C.S. § 9211(h), and determined that there was sufficient evidence to sustain Hairston's first-degree murder convictions, the evidence supported the finding of at least one aggravating circumstance, and the sentence of death was not the product of passion, prejudice or any other arbitrary factor. Id. at 809. On May 17, 2010, the United States Supreme Court denied Hairston's petition for writ of certiorari.
Hairston v. Pennsylvania, 130 S.Ct. 3295 (2010). Accordingly, his judgment of sentence became final on that date. Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (a judgment of sentence becomes final at the conclusion of direct review or the expiration of time for seeking such review).
On or around August 24, 2010, Hairston, through counsel with the Federal Public Defender's Office, commenced this habeas action by filing motions to appoint counsel, to proceed in forma pauperis, and for a stay of execution. The Court granted those motions and issued an Order directing Hairston to file his petition for a writ of habeas corpus under 28 U.S.C. § 2254 on or before December 24, 2010. [ECF No. 2].
When the due date for his petition arrived, Hairston filed his first motion for an extension, which the Court granted. [ECF Nos. 8-9]. When the revised due date approached, he filed a second motion for an extension, which is now pending before the Court. [ECF No. 10]. In that motion, he noted that on February 1, ...