United States District Court, W.D. Pennsylvania
TIMOTHY C. SMITH, JQ-7068, Petitioner,
JOHN E. WETZEL, et al., Respondents.
MEMORANDUM AND ORDER
C. Mitchell United States Magistrate Judge
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
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. 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. Allowance of appeal was denied by the
Pennsylvania Supreme Court on November 4, 2015.
post-conviction petition was filed on October 9, 2012 and
relief was denied on December 13, 2013. On appeal, the
denial of relief was affirmed on March 31,
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
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).
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 ...