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Tarpley v. Giroux

United States District Court, W.D. Pennsylvania

May 19, 2015

VICTOR TARPLEY, KJ-8449, Petitioner,
v.
NANCY GIROUX, et al., Respondents.

REPORT and RECOMMENDATION

ROBERT C. MITCHELL, Magistrate Judge.

I. Recommendation:

It is respectfully recommended that the petition of Victor Tarpley for a writ of habeas corpus (ECF No. 1) be dismissed and because reasonable jurors could not conclude that a basis for appeal exists, that a certificate of appealability be denied.

II. Report:

Victor Tarpley, an inmate at the State Correctional Institution at Albion has presented a petition for a writ of habeas corpus which he has been granted leave to further prosecute in forma pauperis. He is presently serving an eight to twenty year sentence imposed following his conviction by a jury of charges of kidnapping for ransom, robbery and fleeing or attempting to elude at CP-26-CR-1430-2010 in the Court of Common Pleas of Fayette County, Pennsylvania. This sentence was imposed on January 19, 2012.[1]

An appeal was taken to the Superior Court in which the issues presented were:

1. Whether the evidence was legally and factually insufficient to prove that defendant committed the crimes of kidnapping for ransom, robbery, conspiracy to commit robbery, possession of firearms prohibited, theft by unlawful taking, conspiracy to commit theft, terroristic threats, conspiracy to commit terroristic threats and fleeing or attempting to elude.
2. Whether the court erred in permitting the Commonwealth to proceed with questions regarding identification on redirect examination of Caleb Wood when the questions were beyond the scope of cross-examination.
3. Whether the Court abused its discretion in sentencing defendant to eight to twenty years and 7 and one-half to fifteen years concurrently.[2]

On January 16, 2013, the judgment of sentence was affirmed.[3] On July 3, 2013 allowance of appeal was denied by the Pennsylvania Supreme Court.[4]

A post-conviction petition was filed on October 7, 2013 and dismissed on March 26, 2014.[5] An appeal was taken to the Superior Court in which the petitioner, pro se, raised the following issues:

1. Counsel's last minute appointment on the eve of trial caused him to be unprepared and unfamiliar with the case.

2. Trial counsel and substitute counsel failed to prepare or do any meaningful investigation.

3. Trial counsel failed to object to improper remarks made by prosecution during closing remarks.
4. Abuse of discretion by trial court for denial of continuance caused counsel to be ineffective.
5. P.C.R.A. counsel and P.C.R.A. court claim to have reviewed the whole record was error.
6. P.C.R.A. counsel and P.C.R.A. court erred in dismissing appellant's P.C.R.A. motion and its claim of appellant being time barred.
7. P.C.R.A. court erred by not allowing appellant to amend his P.C.R.A. motion.[6]

On October 14, 2014, the Superior Court affirmed the denial of post-conviction relief.[7] Leave to appeal to the Pennsylvania Supreme ...


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