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Nelson v. Harlow

United States District Court, Eastern District of Pennsylvania

May 5, 2014

JOHN NELSON
v.
MICHAEL W. HARLOW, et al.

REPORT AND RECOMMENDATION

JACOB P. HART UNITED STATES MAGISTRATE JUDGE

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by an individual currently incarcerated at the State Correctional Institute at Somerset, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.

I. Factual and Procedural Background

On November 22, 1994, following a jury trial held in the Court of Common Pleas for Philadelphia County, petitioner John Nelson was convicted of one count each of kidnapping, theft by extortion, and possessing instruments of a crime. Commonwealth v. Nelson, 1990 Term No. 9309-2126-2135 (C.C.P. Phila.), Transcript of November 22, 1994 at 301-302. On May 5, 1995, he was sentenced to 11 and a half to 37 years imprisonment. Commonwealth v. Nelson, supra, Transcript of May 5, 1995, at 12.

Nelson filed a direct appeal with the Pennsylvania Superior Court. Commonwealth v. Nelson, 684 A.2d 579 (Pa. Super. 1996). In it, he argued that the trial court erred in admonishing a juror who arrive late for the third day of jury deliberations, and then charging the jury with an instruction used for deadlocked juries, under Commonwealth v. Spencer, 442 Pa. 328 (1971). The Superior Court affirmed the trial court on September 12, 1996, ruling that the issue was waived because of Nelson’s failure to raise it at the time the charge was given. Commonwealth v. Nelson, supra, at 684 A.2d at 580.

Nelson did not seek review in the Pennsylvania Supreme Court. Nor did he file a petition for collateral review under Pennsylvania’s Post Conviction Relief Act, 42 Pa. C.S.A. § 9541 et seq.

On September 17, 2009, Nelson filed in this court a document which he labeled a petition for writ of habeas corpus, although it was not on the approved form. Docket at Document No. 1. Later that month, the Honorable Stewart Dalzell ordered Nelson to re-file, using the appropriate form, and directed the Clerk to prove him with that form. Id. at Document No. 2. On July 26, 2013, Nelson filed a motion to re-open his federal case, and, following more communication about the use of the correct forms, Nelson filed the petition in its present incarnation on November 18, 2013. Id. at Document 7.

In his petition for habeas corpus relief, Nelson has argued that the trial court committed misconduct in “the berating harassment and threatening of a deliberating juror in front of all the jurors, ” (presumably referring to the juror who appeared late on the final morning of deliberations), and then informing the juror, after a verdict was reached, that he would not pursue contempt of court charges against the juror. Apparently, the suggestion is that the failure to charge the juror with contempt was a quid pro quo for the guilty verdict.

Nelson also maintains that his sentence violated his right to due process because, although no co-conspirators were identified in his case, he was convicted of conspiracy. He also maintains, purportedly as a claim for relief, that appeals counsel, even now, “continues to deny petitioner his records which are needed to even be able to ascertain the present status of his very own matters.” Petition at ¶ 12, Ground Two. He has asserted that he is not aware of the outcome of his direct appeal, or whether counsel sought any higher review. Petition at ¶ 9(d) and (g). Finally, Nelson maintains that he is entitled to equitable tolling of the one-year statute of limitations imposed by 28 U.S.C. § 2244(d), because of his counsel’s failure to provide him with information regarding his case.

II. Discussion

A. Timeliness

Nelson’s petition is untimely under 28 USC § 2244(d)(1), which provides that the one-year limitations period for the bringing of a petition for habeas corpus relief ordinarily begins to run from the date on which the petitioner’s conviction became final at the conclusion of direct review, or the expiration of the time for seeking such review. 28 USC § 2244(d)(1)(A).[1]Nelson’s conviction became final on October 12, 1996, thirty days after the Superior Court issued its decision in his case, when the period expired for seeking alocatur to the Pennsylvania Supreme Court.

Even if – to give Nelson every advantage – this habeas corpus petition could be said to have been filed on September 17, 2009, it is still thirteen years late. Indeed, Nelson seems to acknowledge this in arguing that his ...


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