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Shane Shivers v. John Kerestes

April 2, 2013

SHANE SHIVERS, PETITIONER,
v.
JOHN KERESTES, ET AL., RESPONDENTS.



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

OPINION

I.INTRODUCTION

On March 8, 2012, Petitioner Shane Shivers filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On March 14, 2012, the Court referred the Petition to United States Magistrate Judge Thomas J. Rueter for a Report and Recommendation. (Doc. No. 2.) On September 18, 2012, following a review of the filings by the parties, Magistrate Judge Rueter issued the Report recommending that the Petition be dismissed as time-barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). (Doc. No. 18.) On October 2, 2012, Petitioner filed timely objections to the Report and Recommendation. (Doc. No. 19.) For reasons that follow, the Court will approve and adopt Magistrate Judge Rueter's Report and Recommendation (Doc. No. 18)*fn1 and will deny the Petition for Writ of Habeas Corpus.*fn2

II.FACTUAL BACKGROUND*fn3

On November 12, 1997, Petitioner pled guilty to seven counts of robbery, eight counts of criminal conspiracy, and two counts of aggravated assault. (Doc. No. 10 at 3.) At the plea hearing, the Commonwealth recited the factual basis of the charges, and Petitioner signed the guilty plea agreement after reviewing it with his attorney. (Id.) Additionally, Petitioner indicated to the court that he freely consented to plead guilty, discussed the matter with his attorney, and was satisfied with his counsel's services. (Id.)

On December 31, 1997, the Honorable Paul K. Allison in the Lancaster County Court of Common Pleas sentenced Petitioner to an aggregate sentence of thirty-five to seventy years imprisonment. (Id.) Counsel for Petitioner informed him of his appellate rights and the applicable time limits to file an appeal. (Id. at 4.)

On January 9, 1998, Petitioner filed a post-sentence motion with the trial court. (Id.) On January 22, 1998, the trial court denied Petitioner's motion and he appealed. (Id.)

On September 21, 1998, the Pennsylvania Superior Court affirmed the lower court's decision. (Id.) On October 21, 1998, after the time to file a petition for allowance of appeal with the Pennsylvania Supreme Court had passed, Petitioner's judgment became final. (Doc. No. 10 at 5.)

On September 26, 2005, nearly seven years later, Petitioner filed a pro se petition for relief pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA").*fn4 (Id.) On December 20, 2005, the Court of Common Pleas of Lancaster County dismissed the PRCA petition as untimely and Petitioner appealed. (Id.) The Superior Court granted the appeal, vacated the trial court's order, and remanded for appointment of counsel. (Id.)

On January 22, 2007, Petitioner's appointed counsel filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), concluding that the petition was untimely. (Id. at 6.) On March 12, 2007, the Court of Common Pleas dismissed the petition without a hearing. (Id.) Petitioner appealed to the Superior Court, which dismissed the petition as "patently untimely." (Id.) On September 30, 2008, the Supreme Court of Pennsylvania denied Petitioner's request for review. (Id.)

On June 30, 2010, the Petitioner filed a second PCRA petition, which the Court of Common Pleas dismissed as untimely on November 1, 2010. (Id. at 7.) On September 19, 2011, the Superior Court affirmed the court's dismissal. (Id. at 8.) The Pennsylvania Supreme Court denied Petitioner's request for review. (Id.)

On March 8, 2012, more than thirteen years after Petitioner's state court judgment became final, and over three years after the denial of the first PCRA petition, he filed the instant Petition for Writ of Habeas Corpus in this Court. On September 18, 2012, Magistrate Judge

Rueter recommended that the Petition be dismissed as time barred pursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1).

III.STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rules of this district, a district judge may designate a magistrate judge to file proposed findings and recommendations for a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. "Within fourteen days after being served with a copy [of the magistrate's report], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court." 28 U.S.C. § 636(b)(1). Eastern District of Pennsylvania Local Civil Rule 72.1.IV(b) requires an objecting party to "specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections." With ...


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