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Victor Joe Neff v. the Dauphin County Common Pleas Court

April 12, 2013


The opinion of the court was delivered by: Judge James M. Munley United States District Court

Magistrate Judge Blewitt

Judge Munley


Before the court is Magistrate Judge Thomas M. Blewitt's Report and Recommendation, (Doc. 17), which recommends the dismissal of Petitioner Victor Joe Neff's (hereinafter "petitioner") habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Petitioner filed objections to the Report and Recommendation, (Doc. 18), making this case ripe for disposition.


Underlying State Court Conviction and Sentencing

Petitioner, a convicted child molester in the State of Indiana, moved into the Commonwealth of Pennsylvania and was arrested for failing to comply with Pennsylvania's Megan's Law registration requirements. (Doc. 15-2, Ex. A, Dauphin Cnty. Docket No. CP-22-CR0003682-2008 (hereinafter "Cnty. Docket"); Doc. 1-2, Ex. A-P, Marion Cnty. Court's Resp. & Order). On October 23, 2008, petitioner appeared before the Honorable Scott A. Evans of the Court of Common Pleas of Dauphin County and pled guilty to violating 18 PA. CONS. STAT. ANN. §§ 4915(a)(1) (failure to register with the State Police) and (a)(2) (failure to verify residence or be photographed). (Cnty. Docket). Judge Evans sentenced petitioner to three (3) to six (6) years in prison. (Id.) Petitioner did not file a direct appeal with the Superior Court. (Id.)

State Court Post Conviction Relief Act Petition

On February 8, 2011, petitioner filed a Post Conviction Relief Act (hereinafter "PCRA") Petition with the Court of Common Pleas of Dauphin County. (Id.) Approximately one month later, on March 9, 2011, Judge Evans appointed Attorney Bryan DePowell to assist petitioner.*fn2 (Id.) Prior to filing an amended PCRA petition, Attorney DePowell corresponded with petitioner and explained the difficulties presented by the untimeliness of his PCRA petition. (Doc. 1-1, Ex. A-F, Letter from DePowell to Neff dated June 7, 2011). On June 20, 2011, Attorney DePowell filed a supplemental PCRA Petition on behalf of the petitioner. (Cnty. Docket). In this supplemental petition, Attorney DePowell addressed the timeliness of the petition and argued, in part, that the court should deem petitioner's PCRA claim as timely pursuant to 42 PA. CONS. STAT. ANN. § 9545(b)(1) because the facts predicating petitioner's claim were unknown to him until recently and these facts could not have been ascertained with the exercise of due diligence. (See Doc. 1-1, Ex. A-G, Supplemental PCRA Pet.).

On June 28, 2011, the Commonwealth answered the supplemental petition, asserting that the petition should be dismissed because "it is untimely and no exception to the timeliness requirements apply and the underlying claims are without any merit." (Doc. 1-2, Ex. A-H, Answer). On July 13, 2011, Judge Evans issued an order providing petitioner with notice of the court's intent to dismiss the PCRA petition. (Doc. 1-2, Ex. A-K, Order dated July 13, 2011). Judge Evans granted petitioner twenty days to respond. (Id.)

Subsequent to Judge Evans' July 13, 2011 Order, petitioner dismissed Attorney DePowell. (Doc. 1-2, Ex. A-I, Letter from Neff to DePowell dated Aug. 2, 2011). Petitioner did not file a response to Judge Evans' notice of dismissal, rather, on August 12, 2011, he filed a pro se notice of appeal to the Superior Court of Pennsylvania despite the fact that Judge Evans had yet to enter a final order of dismissal. (Cnty. Docket; Doc. 1-2, Ex. A-N, Notice of Appeal; Doc. 1-2, Ex. A-S, Mem. Statement). On October 5, 2011, the Superior Court of Pennsylvania issued an order to show cause as to why petitioner's appeal should not be quashed as having been taken from an interlocutory order. (Doc. 15-2, Ex. B, Superior Ct. Docket No. 1478 MDA 2011 (hereinafter "Superior Ct. Docket")). Petitioner failed to respond to the Superior Court's order to show cause within the time allotted, and on October 26, 2011, the Superior Court quashed petitioner's appeal and remanded the matter to the Dauphin County Court of Common Pleas. (Id.)

Although his PCRA petition was remanded, petitioner nonetheless filed a "Writ of Extraordinary Relief" with the Supreme Court of Pennsylvania on December 13, 2011. (Doc. 1, Ex. A, Writ of Extraordinary Relief). On February 2, 2012, while the petition for extraordinary relief was pending before the Supreme Court, Judge Evans, having received no formal objections to his July 13, 2011 notice, formally dismissed petitioner's PCRA petition. (Cnty. Docket). Petitioner did not appeal this decision to the Superior Court of Pennsylvania. (Id.) Subsequently, on May 23, 2012, the Supreme Court denied petitioner's writ for extraordinary relief. (Doc. 1-2, Ex. B, Pa. Sup. Ct. Order).

Federal Habeas Corpus Petition Under 28 U.S.C. § 2254

On June 27, 2012, Petitioner filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2254 in the Eastern District of Pennsylvania. (Doc.1, Habeas Corpus Pet. under 28 U.S.C. § 2254 (hereinafter "HC Pet.")). Petitioner generally alleges that his continued imprisonment violates Pennsylvania law as well as his constitutional due process rights.*fn3 This case was transferred to the Middle District of Pennsylvania on September 4, 2012 because the habeas petition challenges a conviction imposed by the Dauphin County Court of Common Pleas. (Doc. 3, Report & Recommendation dated July 11, 2012; Doc. 4, Order dated Aug. 1, 2013; Doc. 5, Transfer Notice).

On September 17, 2012, Magistrate Judge Blewitt issued a show cause order on the respondents, directing them to respond to petitioner's habeas petition. (Doc. 7, Order dated Sept. 17, 2013). On September 27, 2012, Respondent Dauphin County District Attorney's Office (hereinafter "respondent") filed a motion for leave to file a partial answer to the instant petition based upon its contention that the petition was not timely. (Doc. 8, Resp't Mot. to File Partial Answer). Judge Blewitt granted respondent's motion.*fn4 Petitioner filed a response to respondent's motion to file a partial answer as well as formal objections to Judge Blewitt's October 1, 2012 Order. (Doc. 10, Pet'r Resp.; Doc. 13, Statement of Objections). Judge Blewit fully considered petitioner's response and objections, neither of which persuaded him to change the previously issued order. (Doc. 12, Order dated Oct. 5, 2012; Doc. 14, Order dated Oct. 12, 2012).

On October 26, 2012, respondents filed a partial response and a brief in support thereof asserting that petitioner failed to file the petition within the appropriate limitations period and that this case does not present facts that would support equitable tolling. (Doc. 15, Resp't Partial Answer; Doc. 16, Resp't Br. in Supp. of Partial Answer). Petitioner failed to file an opposition brief within the time permitted. On January 3, 2013, Judge Blewitt issued a Report and Recommendation in which he concluded that the petition is untimely and not subject to equitable tolling. (Doc. 17, Report & Recommendation dated Jan. 3, 2013 (hereinafter "R&R")). On January 16, 2013, plaintiff filed a objections to Judge Blewitt's Report and Recommendations,*fn5 (Doc. 18, Pet'r Objections (hereinafter "Objections")), thus bringing this case to its current posture.


In disposing of objections to a magistrate judge's Report and Recommendation, the district court must make a de novo determination of those portions of the report against which objections are made. 28 U.S.C. § 636(b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C). The district ...

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