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Smith v. Wetzel

United States District Court, W.D. Pennsylvania

March 10, 2017

TIMOTHY C. SMITH, JQ-7068, Petitioner,
v.
JOHN E. WETZEL, et al., Respondents.

          MEMORANDUM AND ORDER

          Robert C. Mitchell United States Magistrate Judge

         Presently before the Court for disposition is the respondents' motion to dismiss for lack of timeliness (ECF No. 8). 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.

         Timothy C. Smith an inmate at the State Correctional Institution at Forest has presented a petition for a writ of habeas corpus (ECF No.1). Smith is presently serving a 24 years, 8 months and 1 day to 76 years' sentence imposed following his conviction by a jury of 23 counts of aggravated indecent assault, 29 counts of indecent assault, 26 counts of endangering the welfare of a child and corruption of a minor at No. CP-33-CR-83-2009 in the Court of Common Pleas of Jefferson County, Pennsylvania. This sentence was imposed on June 23, 2010.[1] An appeal to the Superior Court was filed and the judgment of sentence affirmed on September 13, 2011. Relief was not sought from the Pennsylvania Supreme Court.[2] Allowance of appeal was denied by the Pennsylvania Supreme Court on November 4, 2015.[3]

         A post-conviction petition was filed on October 9, 2012 and relief was denied on December 13, 2013.[4] On appeal, the denial of relief was affirmed on March 31, 2015.[5]

         The factual background to this petition is set forth in the March 31, 2015 Memorandum of the Superior Court (ECF No. 1-1):

Appellant was arrested on January 5, 2009, and charged with various offenses after his step-daughter, C.P., alleged that he had sexually abused her beginning when she was eight years old and continuing until she was approximately thirteen years old. Appellant proceeded to a jury trial on October 5 and 6, 2009, at the close of which the jury convicted him of 23 counts of aggravated indecent assault, 29 counts of indecent assault (person less than 13 years of age), and 26 counts of endangering the welfare of children. The trial court subsequently sentenced Appellant to an aggregate term of 24 years, 8 months, and one day to 76 years' sentence. Appellant was also determined to be a sexually violent predator for Megan's Law purposes. Appellant timely appealed from his judgment of sentence and, on September 13, 2011, we affirmed. … Appellant did not file a petition for allowance of appeal with our Supreme Court.
On October 9, 2012, Appellant filed a timely, counseled PCRA petition alleging, inter alia, the ineffective assistance of his trial counsel … A PCRA hearing was conducted on May 23, 2013, at which Appellant and [his former attorney] both testified. On December 30, 2013, the PCRA court issued an opinion and order denying Appellant's petition. Appellant filed a timely notice of appeal.
***
Appellant does not dispute the court's factual findings regarding [trial counsel's] strategy and his reasons for not presenting significant evidence of [the victim's] bipolar diagnosis. Instead, Appellant attacks the PCRA court's legal determination that [trial counsel] acted reasonably.
***
Appellant has failed to demonstrate that any of his claims satisfies all three prongs of the test for counsel's ineffectiveness. Accordingly, the PCRA court did not err in denying Appellant post-conviction relief. (ECF No.1-1).

         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 ...

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