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Conrad A. Mcwilliams v. Michael Harlow and the Attorney General of the State of Pennsylvania

January 8, 2013

CONRAD A. MCWILLIAMS,
PETITIONER,
v.
MICHAEL HARLOW AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,
RESPONDENTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION

Conrad A. McWilliams ("Petitioner") is a Pennsylvania state prisoner currently incarcerated at the State Correctional Institute in Albion, Pennsylvania. He initiated this action in September 2011 by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Upon consideration of the submissions of both parties, the Court finds that the petition is untimely and must be dismissed.

A.Relevant Procedural History

In November 1966, Petitioner was indicted in Allegheny County with one count of murder of the first and second degree. (ECF No. 9-1 at 1.) On November 13, 1967, Petitioner pled guilty to the general charge of homicide. (ECF No. 9-1 at 23.) A three-judge panel heard the evidence concerning the degree of guilt and sentence. (ECF No. 9-1 at 23.) At the conclusion of the hearing on November 15, 1967, the court set the degree of guilt at first degree and imposed a sentence of life in prison. (ECF No. 9-1 at 23.) No petition to withdraw the guilty plea was ever filed and no appeal from the judgment of sentence was ever filed with the Superior Court of Pennsylvania. (ECF No. 9-1 at 23.)

On April 27, 1987, Petitioner filed a pro se petition pursuant to the Post-Conviction Hearing Act ("PCHA") alleging ineffectiveness of plea counsel. (ECF No. 9-1 at 10-15, 16-17.) The Public Defender was appointed to represent Petitioner and thereafter filed an amended PCHA petition on August 30, 1988. (ECF No. 9-1 at 18-22.) A hearing was conducted on March 7, 1989, in order to consider the merits of the issues raised in his PCHA petition. See ECF No. 9-1 at 24-25. On April 5, 1989, the court denied the PCHA petition. (ECF No. 9-1 at 23-29.) Petitioner appealed (ECF No. 9-3), and the Superior Court of Pennsylvania affirmed the denial of the PCHA petition on March 13, 1990 (ECF No. 9-4 at 1-7). Petitioner did not seek review to the Supreme Court of Pennsylvania.

On April 18, 2007, Petitioner filed a pro se petition pursuant to the Post-Conviction Relief Act ("PCRA") alleging that he was entitled to a new trial based on newly discovered evidence that he was never informed of a plea bargain reached between his plea counsel and the District Attorney.*fn1 (ECF No. 9-4 at 8-18.) The court denied the PCRA petition on May 23, 2007. (ECF No. 9-4 at 19, 20-21.) Petitioner appealed (ECF No. 9-4 at 22-24, 28-46) and the Commonwealth conceded that the PCRA court had improperly dismissed the petition without providing Petitioner notice of intent to dismiss and allowing him the opportunity to amend the petition (ECF No. 9-5 at 1-12). The Superior Court of Pennsylvania agreed, vacated the PCRA court's order and remanded the case back to the PCRA court. (ECF No. 9-5 at 17-21).

On September 1, 2009, the PCRA court issued its notice of intent to dismiss (ECF No. 9-5 at 22-23) and Petitioner filed his response on September 18, 2009 (ECF No. 9-5 at 24-25). On November 18, 2009, the PCRA court entered its order and opinion denying the PCRA petition. (ECF No. 9-5 at 26-35.) Petitioner appealed (ECF No. 9-6 at 1-20), and on November 23, 2010, the Superior Court of Pennsylvania issued its order and opinion finding that the petition was untimely filed (ECF No. 9-6 at 21-29). Petitioner did not seek review to the Supreme Court of Pennsylvania.

Petitioner filed the instant pro se federal habeas petition in this Court on September 19, 2011.*fn2 In his habeas petition, Petitioner raises the following claims:

1. Did trial counsel render ineffective assistance of counsel, violative of petitioner's constitutional right, in failing to notify petitioner that the Commonwealth had offered a plea agreement which would have significantly shortened his sentence?

2. Did the state court inadequately, in violation of petitioner's constitutional rights, find petitioner did not use "due diligence" in bringing his claim when the trial court found he had, and not affording him an evidentiary hearing?

(ECF No. 4 at 2.)

B.Time Period for Filing Federal Habeas Corpus Petitions

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, Pub.L.

No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA").*fn3 Pursuant to the AEDPA, Congress imposed a one-year limitations period applicable to state ...

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