The opinion of the court was delivered by: Mitchell, M.J.:
James Edward King, an inmate at the State Correctional Institution at Dallas has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
King is presently serving a three and a half to seven year sentence imposed following his conviction, by a jury, of theft by receiving stolen property, criminal conspiracy to commit burglary, and criminal conspiracy to commit theft by unlawful taking at Nos. CP-26-CR-1887 and 1888-2003 in the Court of Common Pleas of Fayette County, Pennsylvania. This sentence was imposed on September 10, 2004.*fn1
An appeal was taken to the Superior Court in which the issues presented were:
1. Was the evidence presented insufficient to support a verdict of guilty on the charges?
2. Did the trial court err when it sentenced the appellant in the aggravated range, as there was no determination by the jury that the number of victims was sufficient to aggravate the sentence?*fn2
On August 24, 2005 the judgment of sentence was affirmed.*fn3
Leave to appeal to the
Pennsylvania Supreme Court was not sought.*fn4
On November 6, 2006 a post-conviction petition was filed and dismissed as untimely.*fn5
An appeal was taken to the Superior Court which ruled on June 2, 2008 that although petitioner's post-conviction petition was on its face untimely, the matter had to be remanded based on petitioner's allegation that he did not learn that counsel had not sought leave to seeks allowance of his direct appeal to the Pennsylvania Supreme Court until sometime after the one year period in which to seek post-conviction relief had expired.*fn6
Following remand, post-conviction relief was again denied and an appeal taken to the Superior Court where the issues presented were:
1. Whether Appellant was denied due process of law, in that the PCRA court below failed to find that Appellant's PCRA petition seeking nunc pro tunc leave to file petition for allowance of appeal satisfied the PCRA time-bar exception?
2. Whether appellant was denied due process of law, in that the PCRA court failed to address and find that consecutive sentences for conspiracy on counts 1887 & 1888 violate Appellant's constitutional right against being placed in double jeopardy under the Fifth Amendment?
3. Whether appellant was denied his right to effective assistance of PCRA counsel; and/or access to the PCRA court, in that PCRA counsel failed to withdraw from the case, and/or the PCRA court erred in appointing attorney Mehalov on remand, in the face of a blatant conflict of interest?
4. Whether Appellant is entitled to have this case remanded back to the PCRA court, based on newly obtained evidence that the Commonwealth withheld evidence that the chief Commonwealth witness, Chad Edward Wolfe, was arrested and convicted subsequent [to] Appellant's trial for providing false information relating to Wolfe's trial testimony?*fn7
On November 13, 2009, the Superior Court affirmed the denial of
post-conviction relief as having been untimely sought and not subject
to the after discovered fact exception to the time bar.*fn8
On June 30, 2010, a petition for allowance of appeal was
denied by the Pennsylvania Supreme Court.*fn9
On July 29, 2010 King filed a second post-conviction petition in the Court of Common Pleas.*fn10 That petition was dismissed without a hearing on October 5, 2010. On appeal, the Superior Court noted that although once again the petition was facially untimely, King was now claiming that it was not until March 3, 2009, that he learned of Wolfe's conviction for false swearing and unsworn false statements; that this knowledge was gained during the pendency of his earlier post-conviction petition which did not become final until June 30, 2010, when leave to appeal was denied and hence the current petition filed on June 29, 2010 was timely under Pennsylvania law.*fn11 The Superior Court credited this claim and concluded that under the circumstance, the appeal was timely filed and addressed the issues raised by the petitioner, namerly:
1. The PCRA court erred in denying him relief on the basis of the Commonwealth's knowing offer of false testimony and the withholding of knowledge that a ...