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Larry N. Stromberg v. David A. Varano

July 10, 2012

LARRY N. STROMBERG, PETITIONER,
v.
DAVID A. VARANO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION

Before the Court are Petitioner Larry Stromberg's Objections to the Report and Recommendation of United States Magistrate Judge Henry S. Perkin. Judge Perkin recommends that the Petition be denied as time-barred. Despite Petitioner's assertions to the contrary, Petitioner has failed to show extraordinary circumstances and reasonable diligence to justify the application of equitable tolling to his claims. Consequently, after a careful and independent review of the state court record and the filings in this case, the Court will overrule Petitioner's Objections and deny the Petition without an evidentiary hearing.

I. BACKGROUND *fn1

On May 1, 1996, Petitioner was arrested and charged with two counts of murder, *fn2 one count of burglary, *fn3 possession of an instrument of crime ("PIC"), *fn4 contempt of court, and criminal trespass. *fn5

The charges were filed after Petitioner was identified as having stabbed and killed his estranged wife and her mother. Before she died as a result of her wounds, Petitioner's mother-in-law identified Petitioner as her attacker. On June 6, 1997, Petitioner was found guilty by a jury in the Philadelphia County Court of Common Pleas. He was sentenced to life in prison for both the first and second degree murder convictions, and 120 to 240 months for the burglary conviction. No penalty was imposed for the remaining convictions.

Petitioner appealed to the Superior Court of Pennsylvania. On March 25, 1999, the Superior Court affirmed the judgment of sentence. Petitioner's appeal to the Pennsylvania Supreme Court was denied on December 1, 1999.

Approximately nine years later, on December 8, 2008, Petitioner filed a "Motion for Post Conviction Collateral Relief," in this Court, but did so on a Pennsylvania state court form. The Court dismissed the motion and ordered that, should Petitioner wish to file a habeas corpus petition, he should do so on the District Court's standard form, which was provided to him. *fn6

Petitioner followed the Court's instruction and the current Petition was filed on January 16, 2009.

On March 20, 2009, Petitioner filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA") in the Philadelphia County Court of Common Pleas. On May 15, 2009, upon application of Petitioner's PCRA counsel, this Court stayed the federal proceedings pending disposition of the PCRA petition. On March 1, 2010, the PCRA court dismissed the PCRA petition as time-barred. Petitioner filed a notice of appeal with the Pennsylvania Superior Court, but the appeal was later withdrawn. On November 16, 2010, this Court lifted the stay of the federal proceedings after receiving a letter from Petitioner informing the Court that his PCRA appeal had been discontinued. The Petition was then referred to Magistrate Judge Perkin for a report and recommendation ("R&R").

Petitioner claims that on November 12, 2008, nearly eight years after his conviction became final, he sent a letter to his trial counsel asking him if a plea offer of 40-80 years had been made by prosecutors prior to his trial. Trial counsel responded: "I think you are correct it was 40-80 years." Petitioner now asserts that he was never informed that an offer was made, and argues that trial counsel's failure to communicate the offer to him deprived him of his Sixth Amendment right to effective assistance of counsel. This ineffective assistance of counsel claim forms the basis of the Petition. *fn7 Judge Perkin found that the Petition was time-barred and that neither statutory nor equitable tolling applied to render the Petition timely. He therefore recommended that the Petition be denied.

Petitioner has filed counseled Objections to the R&R. In his Objections, Petitioner asserts, for the first time, that he hired an attorney in 2000 to represent him in his post-conviction appeals and that the attorney continually assured Petitioner that he was "working on his case." Petitioner states it was not until 2008 that he discovered his attorney had not filed a PCRA or habeas petition on his behalf. It was only then that he began pursuing his claims on his own.

In support of this assertion, counsel has attached to the Objections a Declaration of Petitioner's uncle, Nicholas Mamallis, in which Mr. Mamallis states that "[s]ometime over a year ago," Petitioner's mother informed him "that she had paid an attorney named Neil Jokelson $8,000-$10,000 in 2000 to represent Petitioner following his conviction." Mr. Mamallis contacted Mr. Jokelson, who confirmed he had received the money but did not pursue the case; Mr. Jokelson allegedly refunded about half the amount paid. *fn8 Petitioner asserts that although the Petition is time-barred, he is entitled to equitable tolling based on Mr. Jokelson's alleged failure to pursue his case.

II. LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), *fn9 applies to an application for a writ of habeas corpus on behalf of a person "in custody in violation of the Constitution or laws or treaties of the United States" pursuant to a state court judgment. *fn10 Where a habeas petition, such as the one in this case, is referred to a magistrate judge for report and recommendation pursuant to 28 U.S.C. ยง 636(b)(1), a district court judge conducts a de novo review "of those portions of the report or specified proposed findings or recommendations to which ...

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