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Richard Ernest Boyd v. Brian Coleman

March 1, 2012

RICHARD ERNEST BOYD, PETITIONER,
v.
BRIAN COLEMAN, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge

Judge Lancaster

Magistrate Judge Mitchell

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that the petition for writ of habeas corpus filed by Petitioner Richard Ernest Boyd be dismissed and, because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.

II. REPORT

Petitioner, Richard Ernest Boyd, an inmate incarcerated in the State Correctional Institution at Fayette, Pennsylvania, brings this petition for a writ of habeas corpus in accordance with 28 U.S.C. § 2254, challenging his conviction on December 1, 2001 at No. 55 of 2000 on charges of involuntary deviate sexual assault (2 counts), indecent assault, sexual assault, statutory sexual assault, aggravated indecent assault and corrupting the morals of a minor and the sentence of 12 to 26 years' imprisonment, imposed by the Court of Common Pleas of Washington County, Pennsylvania on March 2, 2001.

For the reasons that follow, the Court should conclude that the petition was not filed in a timely manner and should be dismissed.

Procedural History

On November 18, 1999, Petitioner was charged with the seven offenses outlined above, for having engaged in sexual intercourse and other sexual acts with Gloria Lynn Allen, his niece by marriage, over a period of time prior to her reaching the age of 18. On November 30, 2000, a jury trial began before the Honorable John F. Bell in the Court of Common Pleas of Washington County. Kristin Clingerman appeared on behalf of the Commonwealth and Petitioner was represented by Thomas Cooke, Deputy Public Defender. At the close of the trial on December 1, 2000, the jury found him guilty on all charges. He appeared for a sentencing hearing on March 2, 2001 and was sentenced to a total of 12 to 26 years' imprisonment.

Petitioner filed a notice of appeal on March 29, 2001. On April 6, 2001, Judge Bell appointed Michael J. Savona to represent him. On May 22, 2001, Judge Bell directed Petitioner to file his concise statement of matters complained of on appeal within 14 days. On June 4, 2001, Petitioner filed a motion for leave to file post sentence motion nunc pro tunc, which Judge Bell granted and directed him to file this motion within 10 days. Attorney Savona filed this motion on June 12, 2001. The appeal was docketed at No. 754 WDA 2001. On July 10, 2001, Petitioner filed a praecipe for discontinuance of his appeal in the Superior Court, and the appeal was discontinued.

On October 30, 2001, the post-sentence motion was denied by operation of law. On November 29, 2001, Petitioner filed a notice of appeal in the Superior Court. The appeal was docketed at No. 2086 WDA 2001. He raised the following issues:

1. Whether [Petitioner] is entitled to a new trial on the grounds that the verdict is contrary to the weight of the evidence?

2. Whether the prosecutor, in her closing remark to the jury, made a remark that constitutes reversible error due to the fact that it formed in the minds of the jury such hostilities towards [Petitioner] that the jury was unable to weigh the evidence objectively and render a true verdict?

3. Whether the evidence presented by the Commonwealth was sufficient to find [Petitioner] guilty beyond a reasonable doubt?

4. Whether trial counsel was ineffective for failing to call potential alibi witnesses and due to the fact that [Petitioner] testified at trial, which permitted the Commonwealth to introduce statements regarding his sexual history with the victim?

On June 13, 2002, Judge Bell filed his opinion and order denying the post-sentence motion. On March 11, 2003, the Superior Court affirmed the judgment of sentence, essentially for the reasons identified by Judge Bell in his June 13, 2002 opinion, which the court attached to its opinion.

On April 10, 2003, Petitioner filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was docketed at No. 174 WAL 2003. On November 6, 2003, the court denied his motion.

On March 10, 2004, Petitioner filed a pro se petition pursuant to the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-46 (PCRA). On March 19, 2004, Judge Bell appointed Joseph Zupancic to represent him. On April 15, 2004, Zupancic filed a motion for extension of time to file an amended PCRA petition and on April 16, 2005, Judge Bell granted the motion and ordered him to file it within 30 days. However, on May 17, 2004, Zupancic filed a "no merit letter" and a motion to withdraw as counsel. On July 1, 2004, Judge Bell granted Zupancic's motion to withdraw and on July 2, 2004, he issued a notice of intention to dismiss the petition within 20 days. On August 3, 2004, the court dismissed the PCRA petition.

On September 1, 2004, Petitioner filed a notice of appeal in the Superior Court, which was docketed at No. 1535 WDA 2004. ...


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