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Barrett v. Wenerowicz

United States District Court, W.D. Pennsylvania

November 19, 2014

ANGELO ANTHONY BARRETT, BA-8595, Petitioner,
v.
MICHAEL WENEROWICZ, et al., Respondents

ANGELO ANTHONY BARRETT, Petitioner, Pro se, Huntingdon, PA.

REPORT AND RECOMMENDATION

Robert C. Mitchell, United States Magistrate Judge.

I. Recommendation:

It is respectfully recommended that the petition of Angelo Anthony Barrett for a writ of habeas corpus be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.

II. Report:

Angelo Anthony Barrett, an inmate at the State Correctional Institution at Huntingdon has presented a petition for a writ of habeas corpus.[1]

The chronology of events in this prosecution is set forth in the July 23, 2013 Memorandum of the Superior Court which is attached to our October 3, 2014 Memorandum:

After being found guilty of first-degree murder, Barrett was sentenced to life in prison on July 19, 1989. This Court affirmed the judgment of sentence on February 26, 1990, and Barrett did not seek further review with the Supreme Court of Pennsylvania. See Commonwealth v. Barrett, 400 Pa.Super. 614, 576 A.2d 1130 (Pa.Super.1990)(unpublished memorandum). Barrett subsequently filed his first Post Conviction Relief Act (" PCRA") Petition, which the PCRA court dismissed as untimely on August 10, 1999. This Court affirmed the dismissal on October 11, 2000. See Commonwealth v. Barrett, 2000 PA Super 296, 761 A.2d 145 (PA.Super.2000).
Barrett filed the instant habeas corpus Petition on October 17, 2012. This petition was treated as a PCRA Petition by the PCRA court, and on October 23, 2012, the PCRA court dismissed the Petition due to its untimeliness. Barrett filed a timely notice of appeal...
In his Petition for writ of habeas corpus, Barrett claims that he was denied due process when he was arrested absent the issuance of an affidavit of probable cause... This claim falls squarely within the confines of the PCRA... Accordingly, the PCRA court properly considered the Petition as filed under the PCRA...
Here, Barrett's judgment of sentence became final on March 28, 1990, thirty days after this Court affirmed his judgment of sentence and the time for filing a petition for allowance of appeal with the Supreme Court of Pennsylvania expired... Barrett had until March 29, 1991, to file this PCRA Petition, but he did not file the Instant Petition until October 17, 2012. Thus, Barrett's Petition is facially untimely under the PCRA. Further, Barrett has not explicitly pled or proven any of the exceptions to the PCRA's timeliness requirement... Accordingly, the instant PCRA Petition was properly dismissed as untimely.

(ECF 6, Ex.1).

In a similar manner, it is provided in 28 U.S.C. ยง ...


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