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Barnett v. Harry

United States District Court, M.D. Pennsylvania

April 16, 2014

JOMO BARNETT, Petitioner,
v.
LAUREL HARRY, et al., Respondents.

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, Magistrate Judge.

I. BACKGROUND.

On June 10, 2013, [1] Petitioner Jomo Barnett, [2] an inmate at SCI-Camp Hill, filed a document titled: "PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. §2254." (Doc. 1). Petitioner also attached a completed and signed form "Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody" to his 14-page typed habeas petition. (Doc. 1, pp. 15-29). Petitioner further attached three Exhibits (A-C) to his habeas petition, including portions of a transcript from a state court proceeding seemingly related to Petitioner's PCRA Petition, docket entries from Petitioners' state court criminal case and Petitioner's February 26, 2012 Petition for Writ of Mandamus he filed with the PA Supreme Court. Petitioner also filed a Motion to proceed in forma pauperis. (Doc. 4).

On July 18, 2013, Petitioner paid the filing fee. (Doc. 6).

On July 19, 2013, we issued a Show Cause Order and directed service of the habeas petition on Respondents. (Doc. 7). Respondents were directed to respond to the habeas petition within twenty (20) days of the date of our Order, i.e., by August 8, 2013.

On August 9, 2013, Respondents filed a Motion to file, nunc pro tunc, a Motion to Dismiss the habeas petition as untimely. (Doc. 8). Respondents also simultaneously filed their Motion to Dismiss the habeas petition as untimely filed under the AEDPA. (Doc. 9).

On August 12, 2013, we granted Respondents' Motion to file, nunc pro tunc, a Motion to Dismiss the habeas petition as untimely since their Motion to Dismiss was only one day late and since we found no prejudice to Petitioner. (Doc. 10). We also directed Respondents to file a brief in support of their Motion to Dismiss the habeas petition as untimely within fifteen (15) days of the date of our Order together with all relevant state court records supporting Respondents' contention that Petitioners habeas petition was not timely filed under the AEDPA. We afforded Petitioner fifteen (15) days after he was served with Respondents' brief to file an opposition brief. We stated that Respondents would not be required to respond to the merits of Petitioner s claims raised in his habeas petition until the Court decided if the habeas petition was timely filed. Further, we denied as moot Petitioners Motion to proceed in forma pauperis since he paid the filing fee.

On August 23, 2013, Petitioner filed a Reply to Respondents' Motion to Dismiss. (Doc. 11).

On August 27, 2013, Respondents filed their brief in support of their Motion to Dismiss the habeas petition as untimely with relevant state court records attached as Exhibits, including, Petitioners York County Court of Common Pleas Criminal Docket Number CP-67-CR-1198-2009. (Doc. 12). We note that the York County Court's Docket Sheet in Petitioners case can also be accessed at http://ujsportal.pacourts.us.

On August 29, 2013, Petitioner filed an opposition brief to Respondents' Motion to Dismiss. (Doc. 13).

On September 23, 2013, Petitioner filed a 6-paragraph document entitled "Amendment Reconsideration" with an attachment, namely, a copy of a PA Supreme Court Docket Sheet indicating that on June 13, 2012, Petitioner s Petition for Writ of Mandamus was denied by the State Supreme Court. (Doc. 14). Petitioner s Petition for Writ of Mandamus filed February 24, 2012, was attached to his habeas petition as an Exhibit. (Doc. 1, pp. 39-40). It appears that in his Petition for Writ of Mandamus, Petitioner requested the PA Supreme Court to order the York Court of Common Pleas to grant his Motion to Correct and Modify the record with respect to the trial court's hearing on his PCRA Petition. The PA Supreme Court Docket Sheet also indicated that Petitioner's reconsideration time expired and his case was closed on July 19, 2012. (Doc. 14, p. 3).

In his so-called "Amendment Reconsideration, " Petitioner requests that this federal Court consider his Exhibit attached to his Doc. 14 filing a part of his argument against Respondents' Motion to Dismiss. Petitioner states that his Exhibit shows that he did not discover the factual basis of his habeas claims until "June 19, 2012, " when his reconsideration time expired and his case was closed and, that he timely filed his habeas petition on June 17, 2013, within his one-year statute of limitations.[3] We previously stated that we would consider Petitioner's "Amendment Reconsideration" and his Exhibit attached thereto. We also noted that Respondents' Exhibits showed that Petitioner s Petition for Writ of Mandamus was denied by the PA Supreme Court on June 13, 2012. (Doc. 12, pp. 67, 73 & 75).

Respondents' Motion to Dismiss Petitioner's habeas petition as untimely was ripe for review. (Doc. 9).

On November 19, 2013, we issued a Report and Recommendation ("R&R") and recommended that the Court grant Respondents' Motion to Dismiss (Doc. 9) Petitioner's habeas petition (Doc. 1) as untimely. (Doc. 15). Petitioner filed objections to our R&R. (Doc. 16). However, since we failed to issue a Notice of Election to Petitioner as required by United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued an Order on February 5, 2014, and did not adopt our R&R. (Doc. 17). The Court referred the case back to us for issuance of a Notice of Election to Petitioner and disposition of Respondents' pending Doc. 9 Motion.

Thus, on February 6, 2014, we issued an Order and directed Petitioner to complete and file the Notice of Election attached to our Order. (Doc. 18). Petitioner filed his Notice of Election on March 20, 2014. (Doc. 19). However, Petitioner failed to properly complete his Notice of Election since he did not date it and sign it under penalty of perjury as required on the Notice. (Doc. 19). Thus, we issued an Order on March 24, 2014, and directed Petitioner to properly complete, sign, and file the Notice of Election attached to our Order. (Doc. 20). Petitioner filed his signed Notice of Election on April 15, 2014. (Doc. 21).

On his executed Doc. 20 Notice of Election, Petitioner checked the first box which states: "I have not labeled my motion, petition or pleading as a petition under 28 U.S.C. §2254. I choose to have the court rule on my motion, petition or pleading as filed. I understand that the failure to bring the motion, petition or pleading under 28 U.S.C. §2254 may be a basis for denial or dismissal of the motion, petition or pleading."[4]

As mentioned, the Doc. 1, 14-page typed filing of Petitioner was specifically styled as "PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. §2254." Also, as mentioned, t Petitioner attached a completed and signed form "Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody" to his 14-page typed Habeas Petition. (Doc. 1, pp. 15-29). Thus, despite his choice on his Notice of Election, Petitioner clearly indicated on two separate filings that his Doc. 1 filing was a "PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. §2254."

We now issue this Report and Recommendation regarding Respondents' Doc. 9 Motion.

II. STATE PROCEDURAL BACKGROUND.

In his habeas petition, Petitioner challenges his August 13, 2009 convictions (after a jury trial) and September 28, 2009 judgment of sentence of eight years to sixteen years in a state correctional institution imposed by the Court of Common Pleas of York County, Pennsylvania, for possession with intent to deliver cocaine and criminal conspiracy to possess with intent to deliver cocaine.

Subsequently, Petitioner timely filed a direct appeal of his judgment of sentence with the Superior Court of Pennsylvania on October 5, 2009. (Doc. 12, p. 24).

On December 15, 2010, the Superior Court of Pennsylvania affirmed Petitioners judgment of sentence. (Doc. 12, pp. 47, 51-62). Petitioner did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. We agree with Respondents that since Petitioner did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court with respect to the Superior Court's December 15, 2010, decision affirming Petitioners judgment of sentence, for purposes of §2244(d)(1)(A) and his one-year statute of limitations under the AEDPA to file a §2254 habeas petition, Petitioners conviction became final on January 14, 2011, when the 30-day deadline for seeking review in the PA Supreme Court expired. See Fletcher v. Lawlor, 2011 WL 1288689, *2 (E.D. Pa. 2-22-11) adopted by 2011 WL 1288702 (E.D. Pa. 4-5-11) (since Petitioner did not seek review on direct appeal in the PA Supreme Court after the PA Superior Court affirmed his judgment of sentence, for purposes of §2244(d)(1)(A), Petitioners conviction became final when the 30-day ...


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