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Charles V. Oliver v. James Mcgrady

October 22, 2012

CHARLES V. OLIVER, PETITIONER
v.
JAMES MCGRADY, ET AL.,
RESPONDENTS



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Charles V. Oliver ("Petitioner" or "Oliver"), an inmate presently confined at the State Correctional Institution Retreat ("SCI Retreat") in Hunlock Creek, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2254. (Doc. 1.) He challenges his January 25, 1995 conviction of first degree murder and criminal conspiracy in the Court of Common Pleas of Lackawanna County, Pennsylvania.

In an Order dated August 8, 2012 issued by the Honorable James M. Munley, to whom this case then was assigned*fn1 , it was stated that, upon preliminary review of the Petition, under the provisions of 28 U.S.C. § 2254, see R. Governing § 2254 Cases, R. 4, it appeared that the Petition may be barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc) (holding that district courts may sua sponte raise AEDPA's one-year statute of limitations, provided that the petitioner is provided with notice and an opportunity to respond). (Doc. 6.) Therefore, service of the Petition on Respondents was directed, Respondents were directed to file an answer solely addressing the timeliness of the Petition, and any applicable statutory and/or equitable tolling of the AEDPA statute of limitations, and Petitioner was afforded the opportunity to file a reply. (Id.)

On August 15, 2012, Respondents filed a Response (Doc. 11) and supporting exhibits (Doc. 11-1). On September 4, 2012, Oliver filed a Reply (Doc. 15). Based upon our review of the parties' submissions, for the reasons set forth below, we conclude that we must dismiss the Petition as untimely.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 25, 1995, a jury sitting in the Court of Common Pleas of Lackawanna County convicted Oliver of first degree murder and criminal conspiracy to commit the same based on evidence that he accepted $1,500 from a local drug dealer's assistant to kill Ned Tracy, who was indebted to the dealer. (See Doc. 11-1 at 2-3, 12/14/11 Pa. Super. Ct. Mem. Op.*fn2 ) Oliver's case was severed from the cases of the dealer and the assistant. (See id. at 3.) On January 26, 1995, the trial court sentenced Oliver to life imprisonment without the possibility of parole and to a consecutive sentence of five to ten years' imprisonment for criminal conspiracy. (See id. at 4.)

Oliver filed a direct appeal from his judgment of sentence to the Pennsylvania Superior Court, and on April 3, 1996, the Superior Court affirmed his judgment of sentence. (See id.)

On May 26, 2010, Oliver filed a Motion for Post-Conviction DNA Testing with the trial court under the provisions of 42 Pa. Cons. Stat. Ann. § 9543.1. (See id.)

By Order dated November 8, 2010, the trial court denied Oliver's motion on the basis that he could not present a prima facie case demonstrating that the DNA testing of the specific evidence would establish his actual innocence of the offenses for which he was convicted, as required by § 9543.1(c)(3)(ii)(A). (See Doc. 11-1 at 9, 11/8/10 Trial Ct. Order.) The trial court specifically concluded that, "[b]ecause there was other evidence of the defendant's guilt, including a confession, the presence of evidence of his co-defendants' DNA but absence of evidence of his own DNA would not prove his innocence here." (See id.)

Thereafter, Oliver appealed to the Pennsylvania Superior Court. In its December 14, 2011 Memorandum Opinion affirming the trial court's denial of Oliver's Motion, the Superior Court observed that, in his Motion, Oliver asserted that he was actually innocent of the crimes for which he was convicted, and in support of his argument, pointed to the trial testimony provided by investigators that the victim was found holding a black hair in his hand and possibly had some "probative evidence under his nails" consistent with having defended himself. (See id. at 4-5 (citing N.T. 1/18/95 at 127).) The Superior Court noted that, according to the record, Oliver has blond hair. (Id. at 5.)

The Superior Court affirmed the trial court's denial of Oliver's Motion, but did so on different grounds. (See id. at 2-7, 12/14/11 Pa. Super. Ct. Op.) The Court began its analysis by quoting § 9543.1, entitled Post-conviction DNA testing, as follows:

(1) An individual convicted of a criminal offense in a court of this Commonwealth and serving a term of imprisonment or awaiting execution because of a sentence of death may apply by making a written motion to the sentencing court for the performance of forensic DNA testing on specific evidence that is related to the investigation or prosecution that resulted in the judgment of conviction.

(2) The evidence may have been discovered either prior to or after the applicant's conviction. The evidence shall be available for testing as of the date of the motion. If the evidence was discovered prior to the applicant's conviction, the evidence shall not have been subject to the DNA testing requested because the technology for testing was not in existence at the time of the trial or the applicant's counsel did not seek testing at the time of the trial in a case where a verdict was rendered on or before January 1, 1995, or the applicant's counsel sought funds from the court to pay for the testing because his client was indigent and the court refused the request despite the client's ...


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