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Grace v. Overmyer

United States District Court, W.D. Pennsylvania

June 9, 2015

FRAZIER CISCO GRACE, JB-8477, Petitioner,
v.
MICHAEL D. OVERMYER, et al., Respondents.

MEMORANDUM and ORDER

ROBERT C. MITCHELL, Magistrate Judge.

Presently before the Court for disposition is the respondents' Motion to Dismiss (ECF No.14). For the reasons set forth below the motion will be granted, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Frazier Cisco Grace, an inmate at the State Correctional Institution - Forest has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. Grace is presently serving a 19 ½ to 39 year sentence imposed following his conviction by a jury of rape, involuntary deviate sexual intercourse, sexual assault, kidnapping, unlawful restraint and simple assault at CP-02-CR-15667-2005 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on May 14, 2007.[1]

On October 10, 2007, Grace filed a post-conviction petition. The latter was treated as a motion for leave to appeal nunc pro tunc, leave was granted and an appeal to the Superior Court was filed.[2] The judgment of sentence was affirmed by the Superior Court on June 10, 2011 and leave to appeal was denied by the Pennsylvania Supreme Court on May 16, 2012.[3]

On June 8, 2012, Grace filed a post-conviction petition. That petition was dismissed on August 16, 2012, and the dismissal was affirmed by the Superior Court on October 18, 2013. Leave to appeal was not sought.[4]

On January 8, 2014, Grace filed another post-conviction petition. The latter was dismissed as frivolous on February 7, 2014 and again on April 15, 2014. On December 24, 2014, the Superior Court affirmed the dismissal of the post-conviction petition on grounds of untimeliness.[5]

In the instant petition executed on January 9, 2015, received in this Court on February 10, 2015 and filed on February 17, 2015, Grace contends he is entitled to relief on the following grounds:

1. I am being held under a sentence that is illegal and unconstitutional. The state never proved any element of the crimes I been charged for beyond a reasonable doubt. Amended petitioner's simple assault charge without a hearing or notice; had no jurisdiction over petitioner's crimes and actual innocence.
2. Layered ineffective/Alan R. Patterson failed to comply to Pa.R.A.P. 2119(a). Had my rape, IDSI and sexual assault issue abandoned and waived on my first and direct appeal. Failed to raise my prosecutorial misconduct claim in his amended P.C.R.A. direct appeal. Frank Reilly failed to object at sentence to contest the accuracy of the record and we never had a hearing on these previous convictions; failed to contest my illegal/unconstitutional sentence. Alan R. Patterson failed to raise this illegal sentence in his direct appeal or amended P.C.R.A. due process rights violated federal and state, 6th, 8th, 14th amendments and Article I, Section 9.

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 ...

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