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Jerry Lee Johnson v. Tabb Bickell

March 5, 2012

JERRY LEE JOHNSON
PETITIONER,
v.
TABB BICKELL, ET AL. RESPONDENTS.



The opinion of the court was delivered by: Lynne A. Sitarski United States Magistrate Judge

REPORT AND RECOMMENDATION LYNNE A. SITARSKI DATE: March 5, 2012 UNITED STATES MAGISTRATE JUDGE

Pending before this Court is a pro se petition for writ of habeas corpus, filed pursuant to 28 U.S.C. §2254, by Jerry Lee Johnson ("Petitioner"), an individual currently incarcerated in State Correctional Institute Huntingdon, located in Huntingdon, Pennsylvania. For the following reasons, this Court respectfully recommends that the petition for habeas corpus be transferred to the Third Circuit Court of Appeals, without a hearing.

I. FACTS AND PROCEDURAL HISTORY *fn1

This case involves the death of Francis Nelson, Sr., who was last seen alive on May 1, 1984. See Johnson v. Love, No. 92-2001, slip op. at 1 (E.D. Pa. Apr. 28, 1994). On May 16, 1984, the victim's body was found in the Schuykill River. Id. The cause of death was multiple wounds to the head, throat, and chest. Id. Petitioner was subsequently arrested and charged with the crime.

A. State Court Proceedings

On May 9, 1986, following a jury trial presided over by the Honorable John Geisz of the Court of Common Pleas of Philadelphia, Petitioner was convicted of murder in the second degree and possessing an instrument of crime. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985, at 1 (Pa. Ct. Com. Pl. Dec. 5, 2011). On January 11, 1988, the trial court sentenced Petitioner to life imprisonment on the murder conviction and to a concurrent term of two and one-half to five years imprisonment for the weapons offense. See Johnson v. Love, No. 92-2001, slip op. at 1 (E.D. Pa. July 9, 1993). After conducting oral argument, Judge Geisz denied Petitioner's post-trial motions on February 8, 1988. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985, at 2 (Pa. Ct. Com. Pl. Feb. 22, 1989).

Petitioner filed a direct appeal. See Johnson v. Love, No. 92-2001, slip op. at 1-2 (E.D. Pa. July 9, 1993). The trial court filed an opinion on February 22, 1989, denying relief. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985 (Pa. Ct. Com. Pl. Feb. 22, 1989). The Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence on August 18, 1989. See Johnson v. Love, No. 92-2001, slip op. at 2 (E.D. Pa. July 9, 1993) (citing Commonwealth v. Johnson, 565 A.2d 819 (Pa. Super. Ct. 1989)). Petitioner did not petition for allowance of appeal in the Supreme Court of Pennsylvania. Id.

On May 22, 1990, Petitioner filed his first PCRA petition. Id. The PCRA court appointed counsel, who filed an amended PCRA petition. See Johnson v. Love, No. 92-2001, slip op. at 3 (E.D. Pa. Apr. 28, 1994). The PCRA court held three separate evidentiary hearings on May 10, 1993, November 17, 1993, and January 25, 1994. See Commonwealth v. Johnson, No. 1510 Phila. 1994, at 3 (Pa. Super. Ct. Apr. 26, 1995). The PCRA court denied relief on April 20, 1994. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985 (Pa. Ct. Com. Pl. Apr. 20, 1994). On appeal, the Superior Court of Pennsylvania affirmed. See Commonwealth v. Johnson, No. 1510 Phila. 1994 (Pa. Super. Ct. Apr. 26, 1995). Petitioner filed a petition for allowance of appeal; the Supreme Court of Pennsylvania denied allocatur on October 6, 1995. See Commonwealth v. Johnson, 666 A.2d 1052 (table) (Pa. 1995).

Petitioner has since filed multiple pro se PCRA petitions that have been dismissed as untimely. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985, at 2 (Pa. Ct. Com. Pl. Dec. 5, 2011). For example, on December 5, 2011, the PCRA court dismissed Petitioner's most recent pro se PCRA petition as untimely. See id. Petitioner filed a Notice of Appeal with the Superior Court on December 23, 2011. See Pennsylvania Docket, No. CP-51-CR-0401971-1985 (Pa. Ct. Com. Pl. Dec. 23, 2011). This appeal remains pending.

B. Federal Court Proceedings

Petitioner filed his first pro se habeaspetition on December 14, 1988, alleging "various trial errors and also argu[ing] that he has been denied the right to appeal because of judicial delay." See Johnson v. Love, No. 88-9514, slip op. at 2 (E.D. Pa. Feb. 27, 1989); see also Johnson v. Love, No. 92-2001, slip op. at 2 (E.D. Pa. Apr. 28, 1994); Johnson v. Love, No. 92-2001, slip. op. at 2 (E.D. Pa. July 9, 1993). The Honorable Peter B. Scuderi filed a Report and Recommendation on February 27, 1989, recommending that the petition be dismissed for failure to exhaust state remedies, as Petitioner's direct appeal remained pending. See Johnson v. Love, No. 88-9514, slip op. at 2-4 (E.D. Pa. Feb. 27, 1989). On March 16, 1989, the Honorable Edmund V. Ludwig approved and adopted the Report and Recommendation, and dismissed the petition. See Order, Johnson v. Love, No. 88-9514 (E.D. Pa. Mar. 16, 1989).

On October 26, 1990, Petitioner filed his second pro se habeas petition, alleging that "he has suffered, inter alia,an inordinate delay in the state court process." See Johnson v. Love, No. 90-6865, slip op. at 2 (E.D. Pa. Nov. 14, 1990). Petitioner also alleged "prosecutorial misconduct, insufficient evidence, trial court error in the jury instructions and other trial court error." Id. at 2 n.3. Judge Scuderi filed a Report and Recommendation on November 14, 1990, recommending that the petition be dismissed for failure to exhaust state remedies. Id. at 3. On December 5, 1990, Judge Ludwig adopted and approved the Report and Recommendation, and dismissed the petition. See Order, Johnson v. Love, No. 90-6865 (E.D. Pa. Dec. 5, 1990). Petitioner requested a certificate of probable causefrom the Third Circuit, which was subsequently denied.*fn2 See Order, Johnson v. Love, No. 90-1993 (3d Cir. May 31, 1991).

On April 6, 1992, Petitioner filed his third pro se habeas petition, asserting that "the ineffective assistance of court-appointed PCRA counsel caused an inordinate delay in the PCRA action, thereby denying him due process." Johnson v. Love, No. 92-2001, slip op. at 3 (E.D. Pa. July 9, 1993). Judge Scuderi filed a Report and Recommendation on June 18, 1992, recommending dismissal because Petitioner's claim was non-cognizable. Johnson v. Love, No. 92-2001, slip op. at 3-4 (E.D. Pa. June 18, 1992). On July 20, 1992, Judge Ludwig approved and adopted the Report and Recommendation. See Order, Johnson v. Love, No. 92-2001 (E.D. Pa. July 20, 1992). Petitioner appealed to the Third Circuit. On February 23, 1993, the Third Circuit summarily reversed the district court's judgment and remanded the matter "with instructions to the district court to make a determination of whether petitioner should be permitted to amend his habeas corpus petition to include claims raised in prior habeas corpus petitions and claims of inordinate delay which could justify any failure to exhaust state remedies." See J. Order, Johnson v. Love, No. 92-1676 (3d Cir. Feb. 23, 1993).

Petitioner filed a motion for appointment of counsel, which Judge Ludwig granted on March 19, 1993. See Order, Johnson v. Love, No. 92-2001 (E.D. Pa. Mar. 19, 1993). Petitioner's counsel filed a proposed amendment to the habeas petition, raising the following issues:

(1) Ineffective assistance of appellate counsel for failing to adequately litigate in post-trial motions and/or to preserve for appellate review:

(a) Trial counsel's ineffectiveness for failure to perform adequate pre-trial investigation and to call certain defense witnesses at trial;

(b) Erroneous admission into evidence of [P]petitioner's statements to law enforcement officials obtained in violation of ...


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