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Kevin Brian Dowling v. Jeffrey Beard

December 7, 2012

KEVIN BRIAN DOWLING, PETITIONER,
v.
JEFFREY BEARD, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
LOUIS S. FOLINO, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE; AND
FRANKLIN TENNIS, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, RESPONDENTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

Judge Caputo

MEMORANDUM

This is a capital habeas corpus proceeding brought by a Pennsylvania state prisoner. Following his conviction for first-degree murder and related counts, Petitioner was sentenced to death on November 9, 1998, in the Court of Common Pleas, York County. (Doc. 1). Petitioner's convictions and sentence of death were affirmed on September 29, 2005. Commonwealth v. Dowling, 883 A.2d 570 (Pa. 2005), reargument denied, Commonwealth v. Dowling, No. 255 CAP (December 12, 2005). His petition for certiorari review was denied on October 2, 2006. Dowling v. Pennsylvania, 549 U.S. 838 (2006).

On October 23, 2006, Dowling filed a motion for leave to proceed in forma pauperis and appointment of federal habeas corpus counsel. (Doc. 1). The Court granted the motion on October 24, 2006, and Petitioner was directed fo file a petition for writ of habeas corpus on or before April 22, 2007. (Doc. 3). By Order dated January 12, 2007, Petitioner's motion for stay of execution was granted. (Doc. 6).

Before his habeas petition was due, Petitioner requested three extensions of time in which to file the petition, (Docs. 9, 12, 14) which were granted, (Docs. 11, 13, 16) respectively.

On July 25, 2007, Petitioner filed a motion to stay the federal proceedings to permit Petitioner to exhaust claims in state court. (Doc. 19). By Memorandum and Order dated September 11, 2007, Petitioner's motion to stay federal proceedings was granted. (Doc. 24). By Order dated February 4, 2011, Petitioner was directed to file quarterly reports as to the status of the state court proceedings. (Doc. 26). Since the issuance of this Court's February 4, 2011 Order, there have been eight status reports submitted. (See Docs. 27-31, 33-35).

Petitioner's recent status reports, filed on August 31, 2012, and November 30, 2012, indicate that Petitioner's Amended PCRA petition and accompanying motions are still pending before Judge Bortner of the York County Court of Common Pleas. (Doc. 35). Based on Petitioner's status reports, that this case has yet to proceed beyond the PCRA Court, the Court finds it necessary to revisit the need for a stay of execution and a stay of proceedings. For the reasons that follow, the Court will lift the previously imposed stay of proceedings and execution, and dismiss the petition.

I. Discussion

A. Statutory Framework

A district court is authorized to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition for writ of habeas corpus is the exclusive federal remedy for a state prisoner challenging the very fact or duration of his or her confinement. Preiser v. Rodriguez, 411 U.S. 475, 499 (1973).

A petitioner filing for relief under the federal Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), must generally comply with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A), before a federal court can consider the merits of his habeas corpus petition. Pursuant to § 2254(b)(1)(A), the petitioner must give the state courts an opportunity to review allegations of error before seeking relief in federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c); see also Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (finding that before a federal court can adjudicate claims under habeas corpus, interests of comity and federalism dictate that the state courts must have the first opportunity to decide a petitioner's claims).

The AEDPA also establishes a one-year statute of limitations for filing a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1); Wilson v. Beard, 426 F.3d 653, 659 (3d Cir. 2005). This one-year period runs from the date on which the judgment became final by the conclusion of direct review or when the time for seeking certiorari review expires. 28 U.S.C. § 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 525 (2003). The one-year limitations period is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2); see also Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Under Pennsylvania's Post Conviction Relief Act, a petitioner must file for PCRA relief within one year of the date the judgment becomes final. 42 Pa. Cons. Stat. ยง 9545(b)(1). For purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the United States Supreme Court and the Pennsylvania ...


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