United States District Court, W.D. Pennsylvania
REPORT and RECOMMENDATION
ROBERT C. MITCHELL, Magistrate Judge.
It is respectfully recommended that the petition of James Earl George 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.
James Earl George, an inmate at the State Correctional Institution at Albion has presented a petition for a writ of habeas corpus. George is presently serving a three hundred to six hundred month sentence imposed following his convictions by separate juries in the Court of Common Pleas of Butler County, Pennsylvania, of involuntary deviate sexual intercourse and unlawful restraint at No.CR-0330-2007, and a concurrent sentence at Cr-605-2008 following his conviction of aggravated assault, simple assault, and resisting arrest. These sentences were imposed on February 27, 2009.
A consolidated appeal to the Superior Court ensued and relief was denied on September 3, 2010. Leave to appeal to the Pennsylvania Supreme Court was sought and denied on October 17, 2011.
On April 11, 2011, a post-conviction petition was filed. On October 2, 2012, the post-conviction court filed a memorandum demonstrating its intention to dismiss the petition and granting the petitioner twenty days to respond. On November 8, 2012, the court entered an order stating:
[T]he court provided the def. with notice of our intention to dismiss his petitions under the Post Conviction Relief Act without a hearing, following our review of a no-merit letter and petition to withdraw filed by Attorney Capozzi. The Court provided the def. with twenty days in which to file a response to our proposed dismissal. That Order informed the def. that a failure to respond would result in the dismissal of his petitions. On October 12, 2012, the def. filed a Notice of Appeal and a motion to which he requested the appointment of counsel. By Order of Court dated: October 16, 2012, the Court notes that the def. was not appealing from a final order and set forth that dismissal of his petitions under the Post Conviction Relief Act would await expiration of the period of the def. was given to respond to the Court's proposed dismissal. The period for filing a response to the Court's proposed dismissal of the def.'s Petitions under the Post Conviction Relief Act has passed and the def. has not responded. Thus, it is ordered that the def.'s Petitions under the Post Conviction Relief Act are hereby Dismissed. For the reason set forth in the October 1, 2012 Memorandum Opinion, the def.'s petitions are meritless and no purpose would be served by further proceedings. As the def. filed a Notice of Appeal that was returned by the Superior Court to the Clerk of Courts, the Clerk of Courts is directed to transmit the above records to the Superior Court... (sic.).
On June 5, 2013 the denial of post-conviction relief was affirmed. On September 9, 2013, George filed a petition for leave to file a petition for allowance of appeal nunc pro tunc and that requested was denied on January 16, 2014. The instant petition was executed on March 12, 2014 and received in this Court on March 27, 2014.
The background to these prosecutions is set forth in the Superior Court's September 3, 2010 Memorandum:
On December 8, 2006, the victim, then a minor, went to George's residence to visit friends who were staying with him. Upon arrival, George greeted the victim and informed her that no one else was present at the residence. George asked the victim if she would assist him with his home computer, to which the victim complied. Shortly after, while the victim worked on George's computer, George pulled out a pellet or BB gun from under a couch cushion and pointed it at her. George, then attempted, unsuccessfully, to force the victim to take several pills. He then grabbed the victim's throat, pushed her to the floor and forcibly raped her.
Eventually, George allowed the victim to leave his residence and the victim ran home. The victim and her mother contacted the Butler City Police Department and reported the sexual assault. Police arrested George later that night. George was charged with two counts of rape, one count each of involuntary deviate sexual intercourse, sexual assault, and unlawful restraint.
On November 26, 2007, while imprisoned and awaiting trial on the above charges, Correctional Officer ("CO") Lance Neigh met with George at his cell to try to calm him down, as George was demanding a private cell. CO Neigh informed George that such an arrangement was not possible. George became irate and threatened to hurt someone if he wasn't given a private cell. After several minutes of trying to calm George down, Captain Len Gamble ordered in an extraction team (consisting of five CO's) to remove George from his cell. George injured several officers during the extraction. CO Matthew Salopek was most seriously injured, receiving an injury to his wrist, which required medical attention, and resulted in extended time ...