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Long v. Varano

United States District Court, Third Circuit

September 18, 2013

DURRAN DEMONT LONG, Petitioner,
v.
DAVID A VARANO, et al., Respondents.

REPORT and RECOMMENDATION

ROBERT C. MITCHELL, Magistrate Judge.

I. Recommendation:

It is respectfully recommended that the petition of Durran Demont Long for a writ of habeas corpus be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.

II. Report:

Durran Demont Long, an inmate at the State Correctional Institution at Coal Township, by his counsel, has presented a petition for a writ of habeas corpus. Long is presently serving a sentence of life without parole imposed following this conviction by a jury of second degree murder, aggravated assault, burglary, carrying a firearm without a license, recklessly endangering another person and simple assault at No. CP-04-CR-1526-2003 in the Court of Common Pleas of Beaver County, Pennsylvania. This sentence was imposed on April 7, 2004. An appeal was not pursued.[1]

A post-conviction petition was filed on December 22, 2005 seeking a reinstatement of his appellate rights. That petition was granted on February 28, 2006 and his appellate rights were reinstated. On November 8, 2006, the judgment of sentence was affirmed and a petition for allowance of appeal was not filed. On May 21, 2007, Long filed a post-conviction petition seeking to have his rights to appeal restored nunc pro tunc, that petition was granted, and leave to appeal was denied by the Pennsylvania Supreme Court on April 27, 2010.[2]

A post-conviction petition was filed on June 17, 2010 seeking to challenge the adequacy of trial counsel. That petition was denied and an appeal was taken to the Superior Court in which the issues presented were:

I. Counsel gave ineffective assistance for failing to request an instruction for manslaughter and/or third-degree murder.
II. Counsel gave ineffective assistance for failing to make Petitioner aware of any plea offer purportedly made by the Commonwealth.
III. Counsel gave ineffective assistance for failing to object to evidence of prior bad acts and for failing to request a limiting instruction regarding such evidence.[3]

On November 22, 2011, the denial of post-conviction relief was affirmed, and leave to appeal to the Pennsylvania Supreme Court was denied on May 15, 2012.[4]

The instant counseled petition was filed on May 28, 2013, and in it Long contends he is entitled to relief on the following grounds:

I. Petitioner was denied ineffective (sic) assistance of counsel when counsel failed to request a jury instruction for manslaughter and/or third-degree murder.
II. Petitioner was denied ineffective (sic) assistance of counsel when counsel failed to make petitioner aware of any plea offer ...

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