United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY, District Judge.
This petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was initiated by Beth Ellen Shirey, an inmate presently confined at the State Correctional Institution, Muncy, Pennsylvania (SCI-Muncy). Named as Respondent is SCI-Muncy Superintendent Nancy Giroux. Service of the petition was previously ordered. Shirey is represented by counsel.
Shirey was convicted of first degree murder, criminal conspiracy, and criminal solicitation following a jury trial in the Court of Common Pleas of Schuylkill County, Pennsylvania. She was sentenced to a term of life imprisonment on December 1, 2000.
The victim was Roy Bensinger, Petitioner's husband. Bensinger died of a single.30 caliber gunshot wound on June 4, 1992. His body was discovered by his stepdaughter, Melissa Stine, outside of the home he previously shared with Petitioner. Shirey's.30 caliber rifle was missing from a gun cabinet located inside the house and there were no signs of forced entry.
Following a seven (7) year investigation, Shirey was arrested and charged with the murder of her estranged husband. Petitioner's arrest and subsequent conviction were based in part on testimony given by a career criminal David Blickley, who was Shirey's former paramour and the father of Melissa Stine. A co-Defendant, Ronald Champney, who was tried separately, was found guilty and sentenced to death in Bensinger's murder.
Shirey filed a direct counseled appeal to the Pennsylvania Superior Court which was quashed on April 20, 2001 for failure of her prior counsel to file a supporting brief. No further appeal was pursued. Thereafter, Petitioner privately retained new counsel who filed a motion seeking reinstatement of Petitioner's appellate rights. On November 16, 2001, the Schuylkill County Court of Common Pleas denied the motion for reinstatement of Shirey's appellate rights.
Over a year later, Petitioner's counsel sought collateral relief by filing an action on December 16, 2002 pursuant to Pennsylvania's Post Conviction Relief Act (PCRA). On March 7, 2003, the PCRA court dismissed the action as being untimely. An appeal was not taken from that determination.
Shirey next filed a second counseled PCRA action on July 28, 2003. See Doc. 1, p. 23. The PCRA court granted the Commonwealth's motion to dismiss that PCRA action as being untimely on August 19, 2003. See id. The Pennsylvania Superior Court affirmed that decision on June 22, 2004. See Commonwealth v. Shirey, 858 A.2d 1282 (Pa.Super. 2004). A petition for allowance of appeal was denied by the Pennsylvania Supreme Court on December 28, 2004. See Commonwealth v. Shirey, 864 A.2d 1204 (Pa. 2004).
Petitioner then initiated a pro se § 2254 habeas corpus petition in the United States District Court for the Eastern District. The matter was subsequently transferred to this district and was assigned to the late Judge James F. McClure. See Shirey v. Moore, Civ. No. 05-1459. Petitioner's present counsel subsequently entered his appearance in that matter and filed a request for leave to either submit an amended petition or to withdraw the action without prejudice. The request to withdraw the petition without prejudice was granted by Judge McClure on December 7, 2005. There is no indication that Shirey initiated any further action with respect to her criminal conviction during 2006-07.
Shirey and her current counsel indicate that during June, 2008, they learned that her co-defendant Champney had been granted a new trial. Specifically, a June 3, 2008 PCRA Opinion issued by the Schuylkill County Court of Common Pleas awarded Champney a new trial based upon the following determinations: (1) trial counsel was ineffective for failing to seek suppression of statements made by Champney on the basis that they were in violation of his right to counsel; (2) the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963),  by failing to disclose documentation that the district attorney did not oppose witness Blickley's second parole application, information which could have been used to impeach Blickley's credibility and trial counsel was ineffective for not obtaining such documents by subpoenaing Blickley's state parole file; (3) Champney's trial counsel was ineffective for failing to impeach Blickley with police reports; (4) trial counsel was ineffective for failing to retain a crime scene reconstruction expert to impeach Blickley's testimony; and (5) trial counsel was ineffective for failing to object during closing argument to the prosecutor's reference to Champney's right to remain silent.
The PCRA court concluded that each of those five issues were critical to Champney's case and each by itself had arguable merit. It is noted that the PCRA court rejected other claims raised by Champney relating to the guilt phase of his proceedings on their merits.
Relying upon the Champney decision, Petitioner filed another counseled PCRA action on August 1, 2008. See Doc. 1, p. 4. This PCRA action raised claims of newly discovered evidence in the form of a Brady violation and ineffective assistance of counsel. See id. Shirey's petition was similarly dismissed as being untimely by the PCRA court on November 18, 2008. An appeal to the Pennsylvania Superior Court was dismissed by an October 7, 2009 Memorandum Opinion. Therein, the Superior Court acknowledged that Champney and Shirey "were both unaware of the preferential treatment that Blickley received because neither of their trial counsel subpoenaed Blickley's parole records." Doc. 1-1, p. 7. It was also noted that if the defense had presented a crime reconstruction expert at trial, Blickley's testimony would have been subject to additional impeachment.
The Superior Court also stated that Shirey
"satisfactorily alleges that her claims meet the newly discovered evidence exception of [42 Pa. C. S.] § 9545(b)(1)(ii). However, we conclude that Appellant has failed to prove that this exception actually applies to her untimely PCRA petition."
Id. at p. 11. The Superior Court explained that the Petitioner's claims were not dependent on the outcome of her co-defendant's PCRA action, i.e., a finding that Champney's counsel was ineffective was not dependent on a finding that co-defendant's counsel's performance was deficient. The Superior Court further elaborated that Shirey "knew, or should have known, what her trial counsel did, or did not do, at trial and thus could have raised all of the claims for ineffectiveness raised herein in a timely PCRA action just as Champney did." Id. at p. 14.
Shirey's petition for allowance of appeal to the Pennsylvania Supreme Court was denied on December 29, 2010. On September 8, 2011, the Petitioner's pending counseled second ...