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Jones v. Gilmore

United States District Court, W.D. Pennsylvania

February 24, 2015

BRAD JONES, EX-7435, Petitioner,
v.
R. GILMORE, et al., Respondents.

MEMORANDUM & ORDER

ROBERT C. MITCHELL, Magistrate Judge.

Brad Jones, an inmate at the State Correctional Institution at Waynesburg has presented a petition for a writ of habeas corpus.

Jones is presently serving a 21 ½ to 43 year sentence imposed following his conviction by a jury of third degree murder, carrying a firearm without a license, corruption of minors, criminal conspiracy and abuse of a corpse at No.CP-02-CR-14284-2001 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on May 9, 2002.[1] His appeal was dismissed on April 9, 2003 as a result of the failure of his counsel to file a brief.[2] Jones then filed a post-conviction petition on March 25, 2004 which was dismissed on September 20, 2004.[3] The dismissal was affirmed by the Superior Court on July 27, 2005 and leave to appeal was denied by the Pennsylvania Supreme Court on March 21, 2006.[4]

On March 27, 2007, Jones filed a second post-conviction petition which was dismissed on May 30, 2007.[5] No significant further action occurred until July 15, 2013 when Jones filed a habeas corpus petition, which the Court of Common Pleas determined should be considered as a post-conviction petition.[6] As such it was dismissed on September 23, 2013 as time barred.[7] On November 18, 2014, the Superior Court affirmed the denial of post-conviction relief as time barred.[8]

In the instant petition, executed on February 4, 2015 and received in this Court on February 13, 2015, Jones contends he is entitled to relief on the following grounds:

1. Petitioner is actually innocent of a crime, where the statute alleging a crime does not contain any elements constituting a crime.
2. The public has not been given lawful notice of the elements which constitute a 3rd degree murder.
3. The petitioner was not given lawful notice of the elements of 3rd degree murder to prepare a proper defense.
4. Pennsylvania law forbids a judge to sentence a person outside of the guidelines without citing on record the reasons for deviating from the guidelines.
5. The judge sentenced the petitioner outside the guidelines without stating the reasons on the record.
6. The 3rd degree murder statute classifies it as a felony of the 1st degree
7. The maximum sentence for a 1st degree felony is only a 10-20 year sentence.[9]

That is, the petitioner seeks to challenge both the validity of Pennsylvania's 3d degree murder provisions as well as his allegation that his imposed sentence was outside the sentencing guidelines with no stated reasons for the departure.

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 was prevented from filing by such State action;
(C) The date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) The date on which the factual predicate of the claim or claims presented could have been discovered through ...

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