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Britt v. Attorney General of Pennsylvania

United States District Court, W.D. Pennsylvania

September 29, 2014

KEVIN W. BRITT, HG-7538, Petitioner,
v.
THE ATTORNEY GENERAL OF PENNSYLVANIA, et al., Respondents.

MEMORANDUM & ORDER

ROBERT C. MITCHELL, Magistrate Judge.

Presently before the Court for disposition are the respondents' Motions to Dismiss (ECF Nos. 12 and 13). For the reasons set forth below, the motions will be granted, and the petition will be dismissed.

Kevin W. Britt, an inmate at the State Correctional Institution - Laurel Highlands has presented a petition for a writ of habeas corpus. Britt is presently serving a 38 ½ to 77 year sentence imposed following his conviction, by a jury, of burglary, robbery involving serious bodily injury, robbery with a threat of serious bodily injury and possession of a firearm at No. CP-65-CR-4137-2006 in the Court of Common Pleas of Westmoreland County, Pennsylvania. This sentence was imposed on October 24, 2007.[1] An appeal to the Superior Court was filed and on January 27, 2009, the judgment of sentence was affirmed.[2] Leave to appeal to the Pennsylvania Supreme Court was denied on September 10, 2009.

On June 7, 2010, Britt filed a post-conviction petition. The record appears to indicate that the latter petition was dismissed on March 11, 2011 (Order denying post-sentence motion) and an appeal to the Superior Court was filed. On May 9, 2012, the denial of post-conviction relief was affirmed. Leave to appeal was filed in the Pennsylvania Supreme Court and denied on October 12, 2012.[3]

Britt then filed a second post-conviction petition on June 20, 2014 which is pending in the Westmoreland County Court of Common Pleas.[4]

In the instant petition, executed on May 14, 2014; post-marked June 11, 2014 and received in this Court on June 16, 2014, Britt contends he is entitled to relief on the following grounds:

1. Ineffective assistant of counsel in failing to investigate alibi information.
2. Trial counsel was ineffective for failing to file pre-trial suppression and severance motions.
3. Appellate counsel was ineffective in failing to properly present and litigate sufficiency of evidence claim.
4. Excessive sentencing
The respondents now move to dismiss the petition as untimely.

It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:

(1) A 1-year period of limitation shall apply to the application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) The date on which the judgment became final by the conclusion of direct review or the expiration of the ...

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