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Rose M. Dinkins, 00-4613 v. Supt. Sci Muncy

October 16, 2012

ROSE M. DINKINS, 00-4613, PETITIONER,
v.
SUPT. SCI MUNCY, ET AL., RESPONDENTS.



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

MEMORANDUM and ORDER

Rose M. Dinkins, an inmate at the State Correctional Institution at Muncy has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurors could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Rose M. Dinkins has presented a petition for a writ of habeas corpus. Dinkins is presently serving a life plus a concurrent ten to twenty year sentence imposed following her conviction by a jury of first and second degree murder and robbery at Nos. 7204552, 7204554 and 7205880 in the Court of Common Pleas of Allegheny County, Pennsylvania.*fn1

In either 1972 or 1979 Dinkins sought post-conviction relief on the grounds of a defective plea. Her conviction was apparently reversed and she was retried.*fn2 Following conviction an appeal was filed in the Superior Court at No. 1532 Pittsburgh 1992 alleging inter alia that a juror had read a newspaper account of this matter. This appeal was denied on July 8, 1993 and further relief was subsequently denied.*fn3

She now comes before this Court with an undated petition received on September 12, 2012 and contends she is entitled to relief on the following ground:

Government failed to meet burden of proof. Counsel ineffectively failed to cite this error. Homicides, both, occurred during attempted robbery. No proof negating degree of murder not exceeding murder -- 2nd or 3rd. No proof of malice aforethought required for murder -- 1st degree.*fn4

Dinkins now contents that this issue was not previously raised in the state courts as "with due diligence, [it was] only discovered recently."*fn5

It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:

(1) A 1-year period of limitation shall apply to the application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) The date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) The date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) The date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...


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