United States District Court, W.D. Pennsylvania
WINFRED A. MILNER, AP-6690, Petitioner,
COMMONWEALTH OF PENNSYLVANIA, et al. Respondents.
ROBERT C. MITCHELL, Magistrate Judge.
Winfred A. Milner has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petitioner will be directed to show cause if any, why the instant petition is not subject to dismissal as time barred.
Milner is presently serving a twenty-five to fifty year sentence imposed following his conviction by a jury of rape, involuntary deviate sexual intercourse, unlawful restraint, simple assault and criminal conspiracy at No. CC. XXXX-XXXXX in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on May 20, 1983. An appeal was taken to the Superior Court which Court on April 4, 1985 affirmed the judgment of sentence and review was denied by the Pennsylvania Supreme Court of October 21, 1985.
Appended to the petition as Exhibit 9, is the November 15, 2012, Opinion of the Hon. Robert C. Gallo of the Court of Common Pleas setting forth the further chronology of this prosecution:
The amended PCRA petition arose from the December 6, 1982 jury verdict fmding Petitioner guilty of Rape, Involuntarily Deviate Sexual Intercourse, Unlawful Restraint, Simple Assault and Criminal Conspiracy. Following the denial of post-trial motions on May 18, 1983, the trial court, per the late Honorable Robert A. Dauer, sentenced the Petitioner to an aggregate sentence of 25-50 years imprisonment on May 20, 1983. The Pennsylvania Superior Court affirmed the judgment of sentence on April 14, 1985 at No. 773 Pittsburgh 1983. The Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of Appeal on October 21, 1985 at No. 252 W.D. Allocatur Docket 1985.
On March 24, 1997, Petitioner filed a pro se PCRA petition. The Court appointed counsel who filed an amended PCRA petition. The Court dismissed the petition as untimely filed on July 21, 1998. On appeal from the Order dismissing the petition, the Pennsylvania Superior Court remanded the case for an evidentiary hearing to determine timeliness on August 27, 1999.
Following the evidentiary hearing, Judge Dauer issued a Memorandum Opinion on March 8, 2001 in which the Court found that the PCRA petition was timely filed and scheduled a hearing for April 16, 2001.
Following the death of the trial judge, the case was assigned to the undersigned in 2003. On July 24, 2003, this Court entered an Order of Court ordering Petitioner to file any amendments to his PCRA petition and a post-conviction DNA testing motion if desired. The Court further ordered that if no amendments or testing motions were filed by August 27, 2003, the case would be disposed of. On August 26, 2003, the Court granted David Cercone, Esquire, leave to withdraw his appearance because, according to Petitioner's motion, Petitioner wished to be represented by the Innocence Project of the Benjamin Cardozo Law School (Petition for Leave to Withdraw as Counsel, August 26, 2003, paragraphs 6-11).
On October 22, 2003, the Court appointed John Kent Lewis, Esquire, to represent Petitioner and on January 14, 2004, attorney Lewis filed a Motion for Extension of Time to File Amended PCRA Petition which was granted. On January 10, 2005, Petitioner filed an amended PCRA petition and the Commonwealth filed an Answer on April 15, 2005. On September 20, 2006, attorney Lewis filed a Motion to Withdraw Appearance which the Court granted and appointed John Elash, Esquire to represent Petitioner on that same date.
On August 31, 2007, an evidentiary hearing took place on the second amended PCRA petition where Petitioner appeared and was represented by John Elash, Esquire. On January 1, 2008, attorney Elash filed a Brief in Support of Amended PCRA Petition. On February 7, 2008, the Commonwealth filed its Answer to Brief in Support of Amended PCRA Petition. Throughout the proceedings, Petitioner continued to file various motions pro se or through counsel.
On December 29, 2008, the Court entered an Order dismissing the Amended PCRA Petition. The Order clearly stated "The Petitioner has the right to appeal to the Superior Court of Pennsylvania within 30 days after the entry of this Order." The Assistant District Attorney and John Elash, Esquire, were served with copies of the Order.
On June 13, 2012, Petitioner filed a Notice of Appeal from this Court's Order of December 29, 2008. On the same date, Petitioner filed a pro se Petition for Reconsideration of the Court's Order of December 29, 2008. By Order dated July 10, 2012, the Court dismissed the Petition for Reconsideration because this Court lacks jurisdiction while the matter is on appeal to the Superior Court of Pennsylvania.
Petitioner's Notice of Appeal from the Order of December 29, 2008 was filed more than 3 1/2 years following the Order from which the appeal was taken. No reason for the late appeal was provided. The Notice of Appeal is clearly untimely. Pa.R.A.P. 903.
In his Concise Statement of Matters Complained of on Appeal, Petitioner complains that the PCRA proceedings were inordinately delayed. Petitioner, however, did not file his pro se petition under the PCRA until March, 1997. The proceeding was delayed because Judge Dauer appointed counsel and counsel filed an amended petition. After Petitioner's counsel filed a Notice of Appeal from Judge Dauer's dismissal of the PCRA petition, counsel sought leave to withdraw because she had accepted a position with the District Attorney's office. New counsel was appointed and filed a brief. The Pennsylvania Superior Court remanded the case on August 27, 1999. Even while represented by counsel, Petitioner continued to file pro se motions.
The Court has set forth a brief summary of the procedural history of this case. This summary, however, does not include all of the motions and petitions filed by Petitioner either through counsel or pro se. It also does not list all of the various attorneys who have been appointed to represent Petitioner. Each withdrawal of appearance by counsel and the ...