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Johnson v. Delbalso

United States District Court, Eastern District of Pennsylvania

May 5, 2015

ELWOOD JOHNSON
v.
THERESA A. DELBALSO

ORDER

STEWART DALZELL, J.

AND NOW, this 5th day of May, 2015, upon consideration of petitioner Elwood Johnson’s pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry #1), our February 21, 2014 Order referring this matter to the Honorable Jacob P. Hart for a Report and Recommendation, Judge Hart’s January 28, 2015 Report and Recommendation (docket entry #27), petitioner’s pro se Objections to the Report and Recommendation (docket entry #32) and pro se “motion to leave to amend argument to objection” (docket entry #34), and the Court finding that:

(a) In his January 28, 2015 Report and Recommendation (“R&R”), Judge Hart recommends that we deny petitioner’s Section 2254 habeas petition and decline to issue a certificate of appealability, R&R at 1, 9;

(b) Local Civil Rule 72.1 IV(b) provides that “[a]ny party may object to a magistrate judge’s proposed findings, recommendations or report under 28 U.S.C. 636(b)(1)(B) … within fourteen days after being served with a copy thereof” by filing “written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections;”

(c) We granted petitioner’s pro se motion for an extension of time in which to file his objections, and petitioner filed both his Objections and his “motion to leave to amend argument to objection” before the extended deadline of March 13, 2015, see February 24, 2015 Objections and March 12, 2015 Motion;

(d) We make a de novo determination of those portions of the report or specified proposed findings or recommendations to which petitioner objects, see 28 U.S.C. § 636;

(e) We briefly rehearse the factual and procedural history of petitioner’s case, as drawn from the R&R, which comprehensively cited to the state court record;

(f) On November 21, 2008, following a jury trial in the Court of Common Pleas for Montgomery County, petitioner was convicted of possession of cocaine with intent to deliver, criminal conspiracy, participating in a corrupt organization, and dealing in the proceeds of unlawful activity, R&R at 1 (citing Petition at ¶¶ 2, 5);

(g) On February 5, 2009, petitioner was sentenced to a prison term of sixteen and a half to thirty-three years, id. (citing Petition at ¶¶ 2, 3);

(h) Johnson filed a direct appeal in which he argued that the trial court erred in denying his motion to suppress evidence obtained from what he claimed was an illegal search of his residence and that the evidence against him was insufficient to support his conviction, id. (citing Commonwealth v. Johnson, No. 2033 EDA 2009 (Pa. Super. Ct. Aug. 6, 2010) at 4), and the Pennsylvania Superior Court denied his appeal on August 6, 2010, id.;

(i) On April 29, 2011, petitioner filed a pro se petition under Pennsylvania’s Post-Conviction Relief Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq., id. at 2 (citing Commonwealth v. Johnson, No. 9065-06 (C.C.P. Mont. Apr. 14, 2014));

(j) The PCRA Court dismissed this petition after appointed counsel filed a letter of no merit under Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), but the Pennsylvania Superior Court reinstated the PCRA petition on December 18, 2012, finding that it was unclear whether appointed counsel had considered arguments raised by petitioner in several pro se filings in the PCRA case, id.;

(k) While the first PCRA petition was pending on appeal, petitioner filed a second PCRA petition on September 20, 2012, and the PCRA Court dismissed it without prejudice because it was premature in light of the pending first petition, id.;

(l) The PCRA Court reappointed former PCRA counsel on the first petition, and after a hearing on one issue, a written submission from counsel on the other issues, and appropriate notice to petitioner, the PCRA Court dismissed the first PCRA petition as lacking merit, id., and petitioner did not appeal the dismissal, id.;

(m) In the same May 13, 2014 order in which the PCRA Court dismissed the first PCRA petition, the PCRA Court dismissed without prejudice, and as premature, a third PCRA petition that the petitioner filed on December 21, 2012, id.;

(n) On July 18, 2013, petitioner filed a fourth PCRA petition, which included a claim that the Commonwealth of Pennsylvania had wrongfully filed an amended complaint one month after filing its original complaint against him, without ever providing him with a copy of the original complaint, id.;

(o) Petitioner’s argument appeared to be that trial counsel was thereby misled into stipulating at a pre-trial hearing to the admission of a laboratory report that pertained to drug sales that were not charged in the second complaint, id. at 2-3 (citing Notice of Intention to Dismiss Fourth PCRA Petition, No. 9065-06 (C.C.P. Mont. Jan. 2, 2014) at 6);

(p) On January 17, 2014, the PCRA Court dismissed the fourth petition as time-barred, as the PCRA requires all petitions to be filed within one year from the date the petitioner’s judgment of sentence become final, id. at 3 (citing 42 Pa. Cons. Stat. Ann. § 9545(b)(1));

(q) The PCRA Court explained that petitioner’s judgment became final on June 7, 2011 and he had only until June 7, 2012 to file a PCRA petition, id.;

(r) On April 14, 2014, the PCRA Court explained in an opinion supporting the dismissal that petitioner did not meet any one of the three exceptions to the one year statute of limitations, and noted in passing the ...


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