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Govan v. Wenerowicz

United States District Court, M.D. Pennsylvania

September 11, 2014

CURTIS R. GOVAN, Petitioner,
v.
SUPERINTENDENT MICHAEL WENEROWICZ, et al., Respondents

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

The pro se petitioner, Curtis R. Govan, an inmate at the State Correctional Institution at Graterford, Pennsylvania, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Govan challenges his 1996 conviction in the Court of Common Pleas of Dauphin County, Pennsylvania, for first-degree murder. He was also convicted of aggravated assault, two counts of robbery and three counts of conspiracy. He is serving a sentence of life, plus a term of 31 to 62 years to run concurrently with his life sentence.

He makes three claims in his habeas petition. First, his trial counsel was ineffective for failing to raise a diminished capacity defense based on Govan's mental-health history. This claim is based on "new evidence" from when Petitioner was committed to a mental-health facility as a juvenile. It is also based on Petitioner's placements in several foster homes until he reached the age of 18. (Doc. 1, 2254 petition, ECF p. 5). Second, Petitioner's sentence of life without the possibility of parole violates the Eighth Amendment under Miller v. Alabama, ___ U.S. ___, ___, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012).[1] This claim is based on "newly discovered" evidence that he suffered from trauma as a juvenile that led him to be diagnosed with deficiencies that impaired normal development in areas of the brain controlling risk avoidance. ( Id., ECF p. 7). Third, the state courts erred in determining that his fourth state-court post-conviction petition was untimely after deciding that Miller, supra , did not apply to his situation. (Doc. 1, Pet.).

Along with the habeas petition, Govan filed a motion to stay these proceedings while he pursued state-court remedies challenging the denial of his most recent state-court post-conviction challenge to his conviction. (Doc. 4, Mot. to Stay). We ordered Respondents to address the motion to stay and the issue of the timeliness of the instant 2254 petition. (Doc. 7, Order). Respondents filed an answer seeking dismissal of the petition as untimely. (Doc. 19, Answer). Petitioner filed a reply brief arguing that a stay should be granted until the Third Circuit decides whether Miller is to be applied retroactively to cases on collateral review. (Doc. 22, Reply). Govan has also filed two motions to file an amended 2254 petition with supporting exhibits, all related to his claim that he had diminished capacity at the time he committed his crimes.

For the reasons set forth below, the court will deny Govan's motion to stay, and we will dismiss the petition as untimely filed.

II. Background

On August 5, 1996, a jury convicted Petitioner of murder, conspiracy and related charges. See Commonwealth v. Govan, Nos. CP-22-CR-0735-1996 and CP-22-CR-0905-1996.[2] He was 23 years old at the time of his offenses. (Doc. 2, superior court PCRA opinion, ECF p. 15). He was sentenced on August 27, 1996, to a mandatory term of life imprisonment with an additional 31 to 62 years to run concurrently. (Doc. 1, Pet.).

Govan filed a timely direct appeal with the Superior Court of Pennsylvania, which affirmed the judgment of sentence on April 13, 1999. Commonwealth v. Govan, 738 A.2d 1050 (Pa.Super. 1999)(Table, No. 00732 HBG 96)(unpublished memorandum). The Pennsylvania Supreme Court denied Govan's Petition for Allocatur on July 29, 1999. 559 Pa. 701, 740 A.2d 230 (Pa. 1999)(Table, No. 473 M.D. Alloc. 1999). Govan did not file a petition for writ of certiorari with the United States Supreme Court. See Doc. 2, ECF p. 9, Commonwealth v. Govan, No. 280 MDA 2013 (Pa.Super. Oct. 10, 2013)(unpublished).

On June 22, 2000, Govan filed his first petition for collateral relief under the Pennsylvania Post Conviction Relief Act (PCRA). 42 Pa. Con. Stat. Ann. §§ 9541-9546. The trial court dismissed the petition without a hearing on July 12, 2002. The superior court denied Govan's appeal on September 26, 2003. See Commonwealth v. Govan, 835 A.3d 831 (Pa.Super. Sept. 26, 2003)(Table, No. 1313 MDA 2002). Govan's petition for allowance of appeal was denied by the Pennsylvania Supreme Court on March 16, 2004. See Commonwealth v. Govan, 577 Pa. 710, 847 A.3d 1279 (Pa. Mar. 16, 2004)(Table, No. 752 MAL 2003).

Govan filed three additional PCRA petitions, all of which have been unsuccessful. (Doc. 2, ECF pp. 10 and 48). Two of those petitions are pertinent here, the second and fourth. As recited in the trial court's opinion (dealing with the fourth PCRA petition), dated January 3, 2013, Govan's second petition was filed on May 24, 2004. (Doc. 2, ECF p. 48). The trial court at first dismissed the petition as untimely, but after being reversed by the superior court, decided the petition was timely, considered it on the merits and denied it on February 7, 2007. The superior court affirmed that decision on November 16, 2007. ( Id. ).

Govan's fourth PCRA petition was filed on August 28, 2012, setting forth the ineffectiveness claim and the Miller claim that are the subject of the instant 2254 petition. After issuing an order pursuant to Pa. Rule Crim. P. 907 of its intention to dismiss the PCRA petition without a hearing, the trial court dismissed the petition on January 23, 2013. ( Id., ECF p. 10 and pp. 46-47).

On appeal to the superior court, Govan raised the following claims:

1. Is Appellant entitled to [PCRA] relief by having his life sentence vacated and a new sentence hearing ordered where the sentence was originally imposed in violation of the Eighth Amendment of the Constitution of the United ...

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