United States District Court, Western District of Pennsylvania
MEMORANDUM and ORDER
Robert C. Mitchell United States Magistrate Judge
Presently before the Court for disposition is respondents' Motion to Dismiss (ECF 12). For the reasons set forth below, the motion will be granted.
Donald Eubanks, an inmate at the State Correctional Institution - Huntingdon has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis.
Eubanks is presently serving a 23 ½ to 47 year sentence imposed on March 14, 2005 following his conviction by a jury of attempted homicide, aggravated assault, uniform firearms violation, and receiving stolen property at Nos. CC 200312702 and CC 200313469 in the Court of Common Pleas of Allegheny County, Pennsylvania. An appeal was taken to the Superior Court which affirmed the judgment of sentence on November 15, 2005. Leave to appeal to the Pennsylvania Supreme Court was denied on July 7, 2006.
A timely post-conviction petition was filed on March 8, 2007 and denied on August 22, 2008. No appeal was pursued. Eubanks filed a second post-conviction petition on January 7, 2010 which was dismissed on February 26, 2010. No appeal was taken. Petitioner filed a third post-conviction petition on May 4, 2011 which was dismissed July 20, 2011. An appeal was taken to the Superior Court which affirmed the dismissal on February 17, 2012. Not to be deterred, Eubanks filed a fourth post-conviction petition on January 16, 2013. That petition was dismissed on February 13, 2013 as time barred. An appeal was taken to the Superior Court which affirmed the dismissal as untimely on November 12, 2013 and a petition for allowance of appeal was denied on June 4, 2014.
In the instant petition executed on August 18, 2014, Eubanks contends he is entitled to relief on the following grounds:
1. The expert who performed the test(s) on the evidence collected at the crime scene, and issued a report of her findings did not testify as to her findings, therefore denying petitioner's right to confront the witness against [him] as well as [to] cross examine the witness as to [her] findings.
2. Newly discovered evidence in that petitioner was approached by an individual who actually witnessed the crime that petitioner was alleged to have committed. The witness came forth and provided the court with the name of the individual who committed the crime in the form of an affidavit.
3. The evidence was insufficient in that during cross examination Officer Jeffrey Francis testified that he was not shot in the hand, but cut which was possibly produced by the gunslide on his gun. The other officer involved stated that …it was a combination and confusion where he assumed that the petitioner shot in his direction at least twelve times (as many times as him). The court did not satisfy the three elements that ha[ve] to be proven beyond a reasonable doubt.
4. Ineffective assistance of counsel who entered into a stipulation with the prosecution without consulting petitioner of this very prejudicial action where counsel stipulated to the findings of the crime lab reports without investigating them.
The Commonwealth now moves to dismiss the instant 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 time for seeking such review;
(B) The date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...