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Kimble v. Commonwealth

United States District Court, Third Circuit

August 20, 2013


Reissued Report and Recommendation

CYNTHIA REED EDDY, Magistrate Judge.

I. Recommendation

On March 6, 2013, Respondents filed a Motion to Dismiss as untimely (ECF No. 5) Paul Edward Kimble's Petition for a Writ of Habeas Corpus (ECF No. 1) pursuant to 28 U.S.C. § 2254, attaching the relevant state court dockets. This Court directed petitioner to file a response to the motion to dismiss on or before April 8, 2013. On April 16, 2013, the Court issued a Rule to Show Cause why the case should not be dismissed because petitioner had not complied with the Court's Order, nor had he filed any motions for an extension of time within which to comply with the Court's Order.

On May 1, 2013, petitioner filed a two page response to the Rule to Show Cause addressing the substance of Respondents' motion to dismiss. After careful consideration of the motion, response and state court dockets, it is recommended that the Court grant the motion and dismiss the petition as untimely.[1]

II. Report

A. Procedural history

Petitioner was charged in the Court of Common Pleas of Allegheny County with one count of criminal homicide (18 Pa.C.S. § 2501), for the stabbing death of his estranged wife, Teresa Kimble. On January 29, 2002, Petitioner proceeded to jury trial represented by the Office of the Public Defender. The jury found Petitioner guilty of Murder in the First Degree. On April 8, 2002, the Court imposed the mandatory sentence of life imprisonment without the possibility of parole.

John Knorr, Esquire, was appointed to represent Petitioner on appeal. He filed a timely appeal to the Superior Court of Pennsylvania which filed an Opinion on February 25, 2004 affirming the judgment of sentence. Petitioner did not seek allowance of appeal to the Pennsylvania Supreme Court, and therefore, Petitioner's state conviction became final on March 26, 2004, thirty days after the Superior Court affirmed the judgment of sentence.

On March 23, 2005, Mr. Kimble filed a Petition under the Post-Conviction Relief Act (PCRA), through Attorney Knorr. Following an evidentiary hearing, by Order of Court dated January 20, 2010, the PCRA Petition was dismissed. Petitioner filed an appeal, and Superior Court affirmed the dismissal of the PCRA Petition in its December 15, 2011 Memorandum Opinion. Petitioner filed a Petitioner for Allowance of Appeal (PAA) with the Pennsylvania Supreme Court, which it denied on July 9, 2012.

On August 12, 2012, Petitioner filed, pro se, a second PCRA Petition. Scott Coffey, Esquire was appointed, and he filed a No Merit Letter on October 10, 2012 in which he stated that the petition was untimely and meritless. The trial court dismissed this petition on February 25, 2013. In the meantime, Petitioner had filed the Petition for Writ of Habeas Corpus with this Court which was docketed on January 10, 2013, but is deemed to have been filed on December 30, 2012 pursuant to the Prisoner Mailbox Rule.

Petitioner filed for collateral relief on March 23, 2005, when counsel filed his first, timely PCRA Petition. Some 362 days had elapsed between the time the conviction became final (March 26, 2004) and the time Petitioner filed for collateral relief (March 23, 2005). The PCRA Petition was "pending" until July 9, 2012, the date on which the Supreme Court of Pennsylvania denied the PAA. The time period in which a PCRA Petition is pending is tolled for federal habeas purposes. Lovasz v. Vaughn, 134 F.3d 146, 149 (3rd Cir. 1998). Accordingly, the time period from March 23, 2005 through July 9, 2012 does not count against Petitioner for purposes of filing for federal habeas relief.

Based on the above, Petitioner had until July 12, 2012 to file a timely petition for federal habeas relief. However, Petitioner did not file his Petition for Writ of Habeas Corpus until December 30, 2012, some 171 days later. The Petition for Writ of Habeas Corpus is clearly time-barred.

Petitioner does not dispute any of the above recitation of procedural facts, nor does he plead any exception to the time-bar. Petitioner's sole response to the Commonwealth's untimeliness argument is this:

We ask the Courts to look at the case before them, and We then ask that the District courts review this issue of "Time Bar" carefully and not allow this case to be stepped upon by big word allegations, that fail to prove the facts, which is, this case was timely filed. And ...

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