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Terry Dumas v. Michael Harlow

July 6, 2012

TERRY DUMAS, PETITIONER,
v.
MICHAEL HARLOW, SUPERINTENDENT OF S.C.I.-MERCER;
FRANCIS J. SCHULTZ, ESQ., DISTRICT ATTORNEY OF CRAWFORD COUNTY; AND
THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

OPINION

Terry Dumas ("Petitioner") was convicted of robbery and conspiracy in 2004, after a jury trial in the Court of Common Pleas of Crawford County ("the Sentencing Court"). As a consequence, he is currently incarcerated in the State Correctional Institution at Mercer (SCIMercer"), serving an aggregate sentence of 10 to 20 years for those convictions. He has filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254. Despite the fact that his conviction became final on September 4, 2005, he did not file the instant Petition until October 19, 2009. Because the Petition violates the Antiterrorism and Effective Death Penalty Act's ("AEDPA") one year statute of limitations, and because Petitioner failed to carry his burden to show entitlement to the extraordinary relief of equitable tolling, the Petition will be denied as time-barred.

I. RELEVANT FACTUAL AND PROCEDURAL HISTORY

The parties to this Petition are well aware of the underlying facts of the crime and, as such, the Court will not recite them. Suffice it to say that Petitioner and his co-conspirator, while sitting in the car with the victim of their crime, attacked the victim, choked the victim and took his money. Police were called to the scene and they followed tracks in the snow which lead from the car into a building where the police found Petitioner and his co-conspirator. Police took the two to the hospital where the victim was being treated after the attack and upon seeing the Petitioner and his co-conspirator, the victim immediately identified them as his attackers.

Petitioner was sentenced on August 11, 2004.*fn1 His post-sentence motion for judgment of acquittal was denied by the Sentencing Court and, through court-appointed counsel, Petitioner filed an appeal to the Pennsylvania Superior Court.*fn2

On June 8, 2005, Petitioner filed a Post Conviction Relief Act ("PCRA") Petition, however, he did so at the time while his appeal to the Pennsylvania Superior Court was still pending. As a result, the Sentencing Court dismissed the PCRA Petition on June 10, 2005 in accordance with Pennsylvania law.

On June 16, 2005, Petitioner's court appointed attorney sent Petitioner a letter, indicating that he would withdraw his appearance once the Superior Court decided the appeal. ECF No. 4-1 at 1. This letter was prompted by the fact that in his pro se PCRA Petition, Petitioner apparently complained of ineffective assistance of counsel. In that letter, Petitioner's counsel admonished Petitioner that "[i]f you do not want me to withdraw, then you need to let me know immediately so that I do not." Id. On August 4, 2005, the Superior Court affirmed Petitioner's convictions. On August 11, 2005, (one week after the Superior Court decided Petitioner's appeal), Petitioner's counsel, filed in the Sentencing Court, a motion to withdraw. The following day, the Sentencing Court entered an order granting counsel's motion to withdraw. Petitioner did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, relative to the Superior Court's decision of August 4, 2005.

On the Sentencing Court's docket is an entry on September 16, 2005, indicating that the Sentencing Court received the Superior Court's opinion and that the record was remanded from the Superior Court to the Sentencing Court. Nothing further occurred on the Sentencing Court's docket until August 24, 2009, when Petitioner filed a pro se Petition for Copies of the Entire Docket, which was denied that very same day by the Sentencing Court.

On October 19, 2009, Petitioner signed his Motion to Proceed in Forma Pauperis in order to file the present Petition. ECF No. 1 at 2. The Petition was eventually filed on November 19, 2009. ECF No. 4. The Respondent District Attorney filed an Answer and asserted that the Petition was filed beyond the AEDPA statute of limitations. ECF No. 7. The Answer was stricken for failure to comply with a prior Court order. ECF No. 14. The District Attorney was ordered to re-file an Answer. Id. On January 27, 2010, before Respondent re-filed an Answer, Petitioner filed a Reply, raising a host of issues but not addressing the statute of limitations issue. ECF No. 16.

On February 24, 2010, the District Attorney filed an Answer, which again raised, inter alia, the statute of limitations defense. ECF No. 17. On March 17, 2010, Petitioner filed a Reply to the Answer. In the Reply, Petitioner did respond to the statute of limitations defense. ECF No. 18 at 5 - 6. He also sought leave to amend the Petition. The Court granted the request. ECF No. 22. The Amended Petition was filed on December 20, 2010. ECF No. 23. The District Attorney filed a Response to the Amended Petition, wherein the statute of limitations was again raised. ECF No. 25.

In June 2011, this case was reassigned to the undersigned. The parties have consented to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 6, 20.

II. DISCUSSION

A. The AEDPA Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254 was enacted on April 24, 1996. Because the Petition in this case was filed after its effective date, ...


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