Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barlow v. Garman

United States District Court, E.D. Pennsylvania

January 30, 2018

ROGER LEON BARLOW, JR., Petitioner,
v.
MARK GARMAN, et al., Respondents.

          REPORT AND RECOMMENDATION

          MARILYN HEFFLEY, UNITED STATES MAGISTRATE JUDGE

         This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Roger Leon Barlow, Jr. (“Barlow” or “Petitioner”), a prisoner incarcerated at the Rockview State Correctional Institution in Bellefonte, Pennsylvania. For the reasons discussed below, I recommend that the petition be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On September 17, 2010, Barlow pled guilty in the Court of Common Pleas of Chester County, Pennsylvania to eight counts of arson and one count of criminal mischief. Commonwealth v. Barlow, No. 328 EDA 2016, 2016 WL 6703260, at *1 (Pa. Super. Ct. Nov. 15, 2016). As a result of the plea agreement, the other 76 counts with which he had been charged were withdrawn. Docket at 9-17, Commonwealth v. Barlow, No. CP-15-CR-0001166-2009 (Pa. Ct. Com. Pl. Chester Cnty.) (reproduced at Resp'ts' Br. (Doc. No. 4.) Ex. A). On the same date, the court sentenced Barlow to an aggregate sentence of 12½ to 25 years' imprisonment followed by 10 years' probation, Barlow, 2016 WL 6703260, at *1, which was the sentence agreed to in the plea deal, Resp'ts' Br. Ex. D, at 76 (Doc. No. 4-1 at 76).[1] Barlow did not file a direct appeal of his conviction or sentence. Barlow, 2016 WL 6703260, at *1.

         Almost five years later, on July 21, 2015, Barlow filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541-9546. Barlow, 2016 WL 6703260, at *1. The PCRA court appointed counsel for Barlow; however, counsel filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), asserting that that the petition was untimely and that no meritorious appellate issues existed. Barlow, 2016 WL 6703260, at *1. The PCRA court filed a notice of its intention to deny Barlow's petition on November 12, 2015. Id. Barlow filed a response to the notice, in which he did not dispute that his petition was facially untimely, but asserted that his petition, nevertheless, was timely, because he filed it within 60 days of his learning of the Pennsylvania Supreme Court's ruling in Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), which applied Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), to strike down a Pennsylvania sentencing statute. Barlow also argued that he was entitled to relief regardless of the PCRA's filing deadline because his sentence, issued under an unconstitutional statute, was void ab initio. Resp'ts' Br. Ex. D, at 92-94 (Pet'r's Br., Commonwealth v. Barlow, No. CP-15-CR-0001166-2019 (Pa. Ct. Com. Pl. Chester Cnty. Dec. 17, 2015)) [hereinafter “Pet'r's PCRA Br.”]. The PCRA court rejected those arguments and dismissed his petition. Resp'ts' Br. Ex. D, at 99 n.1 (PCRA Court opinion). The Pennsylvania Superior Court affirmed that denial on October 7, 2013. Id. Ex. D, at 21. The Pennsylvania Supreme Court denied Barlow's petition for allowance of appeal on May 23, 2017. Commonwealth v. Barlow, 9 A.3d 542 (Pa. 2017). Barlow then filed his petition for a writ of habeas corpus in this Court on December 6, 2017.[2] Pet. (Doc. No. 1) at 17.

         II. DISCUSSION

         A. Timeliness

         With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress enacted a one-year limitations period for federal habeas corpus petitions. 28 U.S.C. § 2244(d) (1996). Under the AEDPA:

A 1-year period of limitation shall apply to an 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 retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.