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Keith Brewington v. Michael D. Klopotoski

March 29, 2012

KEITH BREWINGTON
v.
MICHAEL D. KLOPOTOSKI, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



The opinion of the court was delivered by: Norma L. Shapiro, J.

MEMORANDUM

Petitioner Keith Brewington ("Brewington"), an inmate at the Dallas State Correctional Institution in Dallas, Pennsylvania, has filed a pro se motion for equitable relief under Federal Rule of Civil Procedure 60(b), Article III of the United States Constitution, and 28 U.S.C. § 2243. Brewington seeks to vacate the July 6, 2010 Memorandum and Order denying his second habeas corpus petition under 28 U.S.C. § 2254 as untimely, and to reopen his proceedings. The issues are whether the court has jurisdiction to consider all the claims in the equitable relief motion and whether the court erred by dismissing the second habeas petition as untimely. For the reasons set forth below, the equitable relief motion will be denied.

I. BACKGROUND

A state court jury convicted Brewington of first degree murder and conspiracy to commit first degree murder. The court sentenced him to life imprisonment on the murder count and to a concurrent term of five to ten years' imprisonment on the conspiracy count. The Superior Court of Pennsylvania affirmed the conviction on direct appeal, Commonwealth v. Brewington, 740 A.2d 247, 258 (Pa. Super. Ct. 1999), and the Supreme Court of Pennsylvania denied his request for discretionary review. Commonwealth v. Brewington, 758 A.2d 660 (Pa. 2000). Brewington did not petition the United States Supreme Court for a writ of certiorari.

Brewington filed a timely pro se petitionfor collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. §§ 9541, et seq. While the PCRA petition was pending, Brewington filed a pro se federal petition for writ of habeas corpus. Pet., Brewington v. Varner, No. 01-1172 (E.D. Pa. Feb. 20, 2001). The court, adopting the Report and Recommendations ("R&R") issued by Magistrate Judge Charles B. Smith, dismissed the habeas petition without prejudice for failure to exhaust state court remedies because of the pending PCRA petition. Order, Brewington v. Varner, No. 01-1172 (E.D. Pa. April 16, 2002).

The PCRA court appointed counsel for Brewington; counsel filed an amended PCRA petition. The PCRA court dismissed the amended petition on the merits; the Superior Court of Pennsylvania affirmed the dismissal on April 13, 2004. Commonwealth v. Brewington, 852 A.2d 1244 (Pa. Super. Ct. 2004). Brewington had until May 13, 2004 to seek review with the Supreme Court of Pennsylvania, but did not do so. On May 13, 2004, the one-year statute of limitations for Brewington to file a federal petition for writ of habeas corpus accrued. See 28 U.S.C. § 2244(d)(1).

On May 11, 2004, Brewington filed a second pro se PCRA petition. The PCRA court dismissed the second PCRA petition as untimely. Order, Commonwealth v. Brewington, No. 1989-0302 (Ct. Com. Pl. Phila. April 15, 2005). The Superior Court of Pennsylvania affirmed the dismissal. Commonwealth v. Brewington, No. 955 EDA 2005 (Pa. Super. Ct. June 23, 2006) (unpublished). Brewington did not seek review with the Supreme Court of Pennsylvania. The second PCRA petition did not toll the statute of limitations for federal habeas relief because the petition was untimely. See 28 U.S.C. § 2244(d)(2). The limitations period for federal habeas relief expired on May 13, 2005.

On August 28, 2006, Brewington filed a third pro se PCRA petition. The PCRA court dismissed the third PCRA petition as untimely. Order, Commonwealth v. Brewington, No. 1989-0318 (Ct. Com. Pl. Phila. June 1, 2007). The Superior Court of Pennsylvania affirmed the dismissal, Commonwealth v. Brewington, 953 A.2d 594, No. 1893 EDA 2007 (Pa. Super. Ct. Feb. 5, 2008), and the Supreme Court of Pennsylvania denied Brewington's request for review. Commonwealth v. Brewington, 968 A.2d 1280 (Pa. 2009).

Brewington filed a second pro se federal petition for writ of habeas corpus on July 15, 2009--over four years after the limitations period expired. The court, adopting the R&R issued by Chief Magistrate Judge Thomas J. Rueter, dismissed the petition as untimely. Brewington v. Klopotoski et al., 2010 WL 2697477, at *6 (E.D. Pa. July 6, 2010). The Court of Appeals denied Brewington's application for a certificate of appealability. Order, Brewington v. Klopotoski, et al., No. 10-3209 (3d Cir. Oct. 21, 2010).

Brewington, filing the instant motion for equitable relief, seeks vacatur of the court order dismissing the second federal habeas petition. He alleges:

(1) the Philadelphia Police Department and Philadelphia District Attorney committed a fraud on the court during Brewington's trial and PCRA proceedings;

(2) the court erred in deeming the second habeas petition as untimely because his first habeas petition should have been held in abeyance or subject to equitable tolling; and

(3) Magistrate Judge Smith should have excused the first habeas petition from the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") exhaustion requirement because of ...


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