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Napolitan v. Luther

United States District Court, W.D. Pennsylvania

May 19, 2017

RAYMOND A. NAPOLITAN, Petitioner,
v.
SUPERINTENDANT JAMEY LUTHER and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          OPINION

          Lisa Pupo Lenihan United States Magistrate Judge

         For the 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.

         A. Procedural Background

         Before 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).

         Petitioner 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).

         On June 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.

         On 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.

         On July 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 ...

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