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Johnny B. Showers v. Court of Common Pleas

December 26, 2012

JOHNNY B. SHOWERS, PETITIONER,
v.
COURT OF COMMON PLEAS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter

OPINION AND ORDER*fn1

Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner Johnny

B. Showers. [ECF No. 4]. He is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Erie County on May 13, 2002.

For the reasons set forth below, the petition is denied because it is untimely and a certificate of appealability is denied.

I.

A. Relevant Background*fn2

On April 4, 2002, an Erie County jury convicted Petitioner of third-degree murder and related charges. On May 13, 2002, the trial court sentenced him to an aggregate term of 254 to 780 months of imprisonment. (CP Dkt. No. 21). He filed an appeal with the Superior Court of Pennsylvania in which he challenged the weight of the evidence supporting his convictions. The Superior Court affirmed his judgment of sentence on November 24, 2003. (CP Dkt. No. 38, Commonwealth v. Showers, No. 998

WDA 2002, slip op. (Pa.Super. Nov. 23, 2003)). Petitioner did not file a petition for allowance of appeal ("PAA") with the Pennsylvania Supreme Court. Accordingly, his judgment of sentence became final on or around December 23, 2003, thirty days after the Superior Court's decision was entered and the time for filing a PAA expired. Gonzalez v. Thaler, - U.S. - , 132 S.Ct. 641, 653-56 (2012); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review).

Eight days later, on December 31, 2003, Petitioner filed a pro se motion under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (CP Dkt. No. 36). Court-appointed counsel, William J. Hathaway, Esquire, filed a supplemental PCRA motion. (CP Dkt. No. 39). The PCRA Court denied relief on April 19, 2004. (CP Dkt. No. 45). Petitioner did not file an appeal to the Superior Court. Accordingly, his PCRA proceeding concluded on or around May 19, 2004, the date upon which the time to file an appeal expired.

More than one year later, on April 11, 2005, Petitioner filed in the Court of Common Pleas a document that he entitled "writ of habeas corpus ad subjuciendum." (CP Dkt. No. 47). The PCRA Court treated it as a second PCRA motion and it denied relief. Petitioner, proceeding pro se, filed an appeal to the Superior Court at a case assigned Docket Number 865 WDA 2005. That appeal was discontinued on June 8, 2005, because Petitioner failed to file a concise statement of matters complained of on appeal in accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. See Commonwealth v. Showers, No. 1755 WDA 2005, slip op. (Pa.Super. May 25, 2006).

On August 16, 2005, Petitioner filed a third PCRA motion. On September 7, 2005, the PCRA issued an order denying the third PCRA motion as untimely. Petitioner appealed to the Superior Court, which affirmed the denial of PCRA relief on the basis that Petitioner once again failed to comply with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Id. at 3-4. The Pennsylvania Supreme Court denied a PAA on October 18, 2006. Commonwealth v. Showers, 909 A.2d 304 (Pa. 2006).

Approximately one year and eight months later, on June 18, 2008, Petitioner filed another PCRA motion. The PCRA Court denied the motion as untimely and the Superior Court affirmed on June 3, 2009. Commonwealth v. Showers, 2027 WDA 2008, slip op. (Pa.Super. June 3, 2009).

Approximately two years and five months later, on or around November 8, 2011, this Court's Clerk's Office received for filing the instant petition for a writ of habeas corpus. Petitioner claims his May 13, 2002, sentence is excessive, in violation of numerous constitutional rights. He seeks an order from this Court directing that he be released from custody.*fn3

As discussed below, this proceeding is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). In their Answer, Respondents contend that the petition must be dismissed because it is untimely under the statute of limitations set forth in AEDPA, which is codified in relevant part at 28 U.S.C. § ...


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