United States District Court, M.D. Pennsylvania
WILLIAM J. NEALON, District Judge.
Petitioner, Travis Lee Gullion, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 4, 2010, attacking a conviction imposed by the Court of Common Pleas for York County, Pennsylvania. (Doc. 1). Previously, by Memorandum and Order dated September 20, 2011, Petitioner's motion for reconsideration of this Court's November 19, 2010 Memorandum and Order dismissing the petition as untimely under the statute of limitations, was granted, the case was reopened, and the matter was stayed pending the conclusion of the state courts' decision on the timeliness of Petitioner's second petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. See (Doc. 34, Order).
Presently pending is Respondents' motion to reinstate this Court's November 19, 2010 Memorandum and Order dismissing the petition as untimely. (Doc. 38). For the reasons set forth below, the motion will be granted.
The following background has been extracted from the Pennsylvania Superior Court's November 30, 2004 Opinion affirming Petitioner's judgment of sentence.
A Criminal Complaint was filed on August 31, 2002, charging the Defendant with Aggravated Assault ([18 Pa.C.S.A.] § 2702(a)(1)) Recklessly Endangering Another Person ([18 Pa.C.S.A.] § 2705) and Endangering the Welfare of a Child ([18 Pa.C.S.A.] § 4304(a)). The Defendant was alleged to have physically assaulted his natural daughter, L.G. (date of birth: 6/18/02) on or about August 31, 2002 at the family residence in Newberry Township, York County, Pennsylvania. Thereafter, L.G. was declared "brain dead" on September 3, 2002 and subsequently a determination was made with family members to withdraw life support and she expired that same day. A second Complaint was then filed on September 3, 2001 charging Defendant with Criminal Homicide, Murder in the 1st and 3rd Degrees (18 Pa.C.S.A.] § 2502 (a) and (c)).
On July 10, 2003, the Defendant entered a plea of guilty generally to Criminal Homicide as well as guilty to Aggravated Assault, Recklessly Endangering Another Person and Endangering the Welfare of a Child. In return the Commonwealth agreed to withdraw the charge of Criminal Homicide, Murder in the 1st Degree. There was no agreement as to sentencing.
Thereafter the Court conducted a degree of guilt hearing on September 30, 2003, at the conclusion of which the Court determined that the Defendant was guilty of Criminal Homicide, Murder in the 3rd Degree. A sentencing hearing was scheduled for and conducted on November 17, 2003 at which time the Defendant was sentenced to 20 to 40 years in a State Correctional Institution on the charge of Criminal Homicide, Murder in the 3rd Degree. No separate sentence was imposed on the remaining charges.
As indicated the Defendant filed a Post-Sentence Motion on November 26, 2003 (Pa.R.Crim.P. 720) asserting that the Trial Court's determination of guilt to 3rd Degree Murder was against the weight of the evidence and therefore sought a new degree of guilt hearing and reconsideration of sentence. That Post-Sentence Motion was denied and refused without a hearing on December 2, 2003.
(Doc. 22, Memorandum Opinion of the Superior Court of Pennsylvania dated November 30, 2004). Petitioner filed a timely appeal.
By Memorandum Order filed November 30, 2004, the Pennsylvania Superior Court affirmed Petitioner's conviction and sentence. Id.
On December 30, 2004, Petitioner filed for allowance of appeal to the Pennsylvania Supreme Court, which was denied on June 1, 2005. (Doc. 22, Allocatur Docket Sheet).
On June 5, 2006, he filed a pro se PCRA petition. (Doc. 22, ...