United States District Court, W.D. Pennsylvania
RAYMOND A. NAPOLITAN, Petitioner,
SUPERINTENDANT JAMEY LUTHER and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Pupo Lenihan United States Magistrate Judge
reasons that follow, the Petition for Writ of Habeas Corpus
(ECF No. 1) will be dismissed as untimely and a Certificate
of Appealability will be denied.
this Court is a Petition for Writ of Habeas Corpus filed by
Petitioner Raymond A. Napolitan (“Petitioner”)
pursuant to 28 U.S.C. § 2254. (ECF No. 1.)
Petitioner challenges his bench conviction in the Mercer
County Court of Common Pleas, for Sexual Assault and Simple
Assault, two counts of Recklessly Endangering Another Person,
and summary offenses. (Resp't Ex. V, ECF No. 5-24).
Petitioner was sentenced on October 28, 2008. (Resp't
Exs. EE and FF, ECF Nos. 5-33, 5-34).
filed a Notice of Appeal on December 1, 2008. (Resp't
Exs. II and JJ, ECF No. 5-37, 5-38). On January 9, 2009, the
lower court filed its opinions. (Resp't Exs. KK and LL,
ECF No. 5-39, 5-40). The Pennsylvania Superior Court denied
relief in a Memorandum Opinion issued on December 22, 2009.
(Resp't Ex. PP, ECF No. 5-44). Petitioner filed a
Petition for Allowance of Appeal (PAA), which was denied by
the Pennsylvania Supreme Court on June 8, 2010. (Resp't
Exs. QQ and SS, ECF Nos. 5-45, 5-47).
9, 2011, Petitioner filed a petition pursuant to
Pennsylvania's Post-Conviction Relief Act (PCRA) alleging
ineffective assistance of counsel. (Resp't Ex. TT, ECF
No. 5-48). Testimony was taken on April 4, 2013 and May 30,
2013. (Resp't Ex. III, ECF No. 5-63). The PCRA petition
was denied on May 30, 2013. ((Resp't Ex. JJJ, ECF No.
5-64). Petitioner filed a Notice of Appeal on June 14, 2013.
(Resp't Exs. KKK and LLL, ECF Nos. 5-65, 5-66). On August
13, 2013, the lower court filed its opinion. (Resp't Ex.
MMM, ECF No. 5-67). On March 18, 2013, the Pennsylvania
Superior Court affirmed the PCRA court's denial of the
petition. (Resp't Ex. VVV, ECF No. 5-76). No PAA was
filed with the Pennsylvania Supreme Court.
December 2, 2014, Petitioner filed his second PCRA Petition,
alleging a change in the law rendering his sentence unlawful,
and ineffective assistance of counsel for his failure to
anticipate the change. (Resp't Ex. WWW, ECF No. 5-77).
The second PCRA Petition was denied on May 11, 2015.
(Resp't Ex. CCCC, ECF No. 5-83.) While Petitioner filed a
pro se notice of appeal to the Court of Common Pleas
on May 26, 2015, it did not appear to have been forwarded to
the Pennsylvania Superior Court as there appears to be no
docket entry for it. (Resp't Ex. DDDD, ECF No. 5-84.)
Petitioner did not pursue any appeal with the Superior Court
with any subsequent filings.
13, 2015, Petitioner filed the instant Petition for Writ of
Habeas Corpus. (ECF No. 1.) In the Petition, Petitioner
raises the following five claims, summarized as follows:
1. The sentencing enhancement statute, 42 Pa.C.S. §
9712, which was applied to Petitioner's conviction for
Sexual Assault, was declared unconstitutional, thus entitling
Petitioner to relief.
2. Trial counsel was ineffective for “failing to secure
the presence of witnesses, ” and for advising
Petitioner that the charges would be “thrown out for
lack of evidence.”
3. Trial counsel was ineffective for filing to replace his
investigator and, thus, to properly investigate the case.
4. Trial counsel was ineffective for advising Petitioner to
proceed with a non-jury trial rather than a jury trial.
5. Sexual assault allegations against officers with the
Southwest Regional Police Department presented an additional
means of attacking the ...