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Bennett v. Walsh

United States District Court, M.D. Pennsylvania

September 25, 2014

EDWARD BENNETT, Petitioner,
v.
JERRY WALSH, et al., Respondents.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

I. Introduction

Petitioner, Edward Bennett, a state prisoner proceeding pro se and in forma pauperis in this matter initiated this action not by filing a petition for habeas corpus pursuant to 28 U.S.C. § 2254 but rather by first filing a motion to stay. (Doc. 1, Mot. to Stay.) The court then directed Mr. Bennett to file a habeas petition. (Doc. 4, Order.) On January 23, 2012, Mr. Bennett filed his petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254 challenging his 1999 convictions in the Court of Common Pleas of Luzerne County, Pennsylvania. (Doc. 8, Pet.) For the reasons set forth below, the petition will be dismissed with prejudice as untimely under 28 U.S.C. § 2244(d)(1) and his motion to stay will be denied.

II. Facts and Procedural History

On September 27, 1999, Mr. Bennett was convicted of various drug trafficking offenses in the Court of Common Pleas of Luzerne County, Pennsylvania, and was sentenced to 10 to 20 years' imprisonment. (Doc. 12-1, Commonwealth v. Bennett, CP-40-CR-0002828-1998 (Ct. Com. Pl. Luzerne)(docket sheet).)

Mr. Bennett's filed a timely direct appeal to the Superior Court of Pennsylvania which remanded the matter back to the trial court so that counsel could be appointed to represent Mr. Bennett on appeal. See Commonwealth v. Bennett, No. 1608 MDA 2000 (Pa.Super. Sept. 7, 2001)(unpublished). However, following entry of the remand, but prior to the trial court addressing the matter, Mr. Bennett advised the Superior Court "that he would prefer to stay pro se ' and specifically asked the Superior Court to rescind its order in its entirety.'" (Doc. 12, Respt's Resp., ECF p. 4 citing Commonwealth v. Bennett, No. 1608 MDA 2000 (Pa.Super. Feb. 14, 2002).) As a result the Superior Court withdrew its remand order and considered the issues raised in Mr. Bennett's pro se direct appeal. On February 14, 2002, the Superior Court affirmed the judgement of sentence but again remanded the case to the trial court for the development of Mr. Bennett's ineffective assistance of counsel claims. ( Id. ) The Pennsylvania Supreme Court denied Mr. Bennett's Nunc Pro Tunc Petition for allowance of appeal on March 5, 2003. See Commonwealth v. Bennett, No. 249 MM 2002 (Pa. Mar. 6, 2003)(unpublished).[1]

On October 23, 2002, while Mr. Bennett's Petition for Allowance of Appeal was still pending, the trial court appointed counsel for Mr. Bennett and held an evidentiary hearing to develop his claims of ineffectiveness assistance of counsel in accordance with the Superior Court's order. On September 23, 2003, the trial court dismissed all of Mr. Bennett's remaining claims. The Superior Court affirmed the trial court's decision addressing Mr. Bennett's ineffectiveness of counsel claims on October 6, 2004. See Commonwealth v. Bennett, 864 A.2d 575 (Pa.Super. Oct. 6, 2004)(Table, No. 1572 MDA 2003), reargument denied (Dec. 17, 2004). Mr. Bennett's Petition for Allowance of Appeal to the Pennsylvania Supreme Court was denied on June 3, 2005. See Commonwealth v. Bennett, 583 Pa. 658, 875 A.3d 1072 (Pa. 2005)(Table, 47 MAL 2005). Mr. Bennett did not file a petition for writ of certioriari with the United States Supreme Court.

On August 29, 2005, Mr. Bennett filed his first petition for collateral relief under the Pennsylvania Post Conviction Relief Act (PCRA). 42 PA. CON. STAT. ANN. §§ 9541-9546. After being appointed counsel, Mr. Bennett elected to proceed on his pro se petition without amendment. The trial court dismissed the petition without a hearing on February 22, 2006. The Superior Court denied Mr. Bennett's appeal. See Commonwealth v. Bennett, No. 549 MDA 2006 (Pa.Super. June 6, 2007). Mr. Bennett's Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on May 28, 2008. See Commonwealth v. Bennett, No. 1026 MAL 2007 (Pa. May 28, 2008).

On December 3, 2008, Mr. Bennett filed a second PCRA petition. It was denied as untimely by the trial court on March 18, 2009. On July 8, 2010, the Superior Court of Pennsylvania affirmed the dismissal of Mr. Bennett's second PCRA petition as untimely. See Commonwealth v. Bennett, 731 MDA 2009 (Pa. Super.), reargument denied (Sept. 10, 2010). The Supreme Court of Pennsylvania denied Mr. Bennett's Petition for Leave to File his Petition for Allowance of Appeal Nunc Pro Tunc. See Commonwealth v. Bennett, 21 MM 2011 (Pa. Sept. 30, 2011).

During the pendency of his nunc pro tunc petition before the Pennsylvania Supreme Court, Mr. Bennett filed a third PCRA petition on July 14, 2011. The trial court denied the petition as untimely on January 3, 2012. On September 27, 2012, the Pennsylvania Superior Court quashed his notice of appeal as untimely. See Commonwealth v. Bennett, 1454 MDA 2012 (Pa. 2012).

On December 2, 2011, Mr. Bennett filed a motion to stay in this matter seeking to toll the habeas corpus statute of limitations period "pending the outcome of the" of his third PCRA petition. (Doc. 1, Mot. to Stay.) Under the prisoner mailbox rule, Mr. Bennett filed the instant habeas corpus petition on January 23, 2012. (Doc. 8, Pet.) In his petition he lists 23 claims he seeks to pursue and promises to elaborate on them further in the Memorandum of law he will file with the court.[2] However, to date, no such memorandum was ever filed. ( Id., ECF pp. 2-3.) In his habeas petition, in response to the question as to the timeliness of his petition if filed one year after his judgment of conviction, Mr. Bennett simply responds "STILL CONTESTING CONVICTION." ( Id., ECF p. 18.) Mr. Bennett did not file a traverse or reply to the Respondent's allegations in that his habeas petition is untimely filed without excuse. (Doc. 12, Respt's Resp.)

III. Discussion

A. Law Relevant to the Timeliness of the 2254 Petition

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective on April 24, 1996. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Under the AEDPA, federal habeas corpus petitions are subject to a one-year ...


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