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McCurdy v. Tice

United States District Court, W.D. Pennsylvania

February 15, 2018

JOHN McCURDY, Petitioner,
v.
ERIC TICE, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and DISTRICT ATTORNEY OF LAWRENCE COUNTY, Respondents.

          David S. Cercone United States District Judge

          REPORT AND RECOMMENDATION

          Cynthia Reed Eddy United States Magistrate Judge

         I. RECOMMENDATION

         It is respectfully recommended that Respondents' Motion to Dismiss be granted, the petition for a writ of habeas corpus be dismissed with prejudice as untimely, and that a certificate of appealability be denied.

         II. REPORT

         A. Relevant and Procedural Background

         Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner John McCurdy (“Petitioner” or “McCurdy”), in which he is challenging his 2006 convictions for inter alia, corrupt organizations, criminal conspiracy, and possession of a controlled substance. On November 3, 2006, McCurdy was sentenced by the Lawrence County Court of Common Pleas to a term of imprisonment of 13-1/2 to 28 years. McCurdy timely appealed to the Superior Court of Pennsylvania.

         On direct appeal, McCurdy challenged the sufficiency of the evidence supporting his convictions of corrupt organizations, claiming there was no proof that his criminal actions benefited an enterprise with which he was connected. McCurdy's conviction and sentence were affirmed on February 15, 2008. See Commonwealth v. McCurdy, 943 A.2d 299 (Pa. Super. 2008). McCurdy did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. His judgment, therefore, became final thirty (30) days after the judgment of sentence was affirmed.

         McCurdy filed a timely pro se petition for post-conviction collateral relief under the Post-Conviction Relief Act (“PCRA”), alleging ineffective assistance of trial counsel. The PCRA court denied the PCRA petition on February 4, 2011. McCurdy appealed and on April 19, 2013, the Superior Court affirmed the PCRA court's decision. McCurdy did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.

         The following year, on April 2, 2014, McCurdy filed a second PCRA petition. Counsel was appointed and on August 14, 2015, a counseled amended petition was filed in which McCurdy claimed that he was entitled to relief because his sentence was illegal under Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (applying Alleyne v. United States, 133 S.Ct. 2151 (2013)). Recognizing that the second petition was untimely, counsel argued that the decision in Hopkins recognized a new constitutional right and should be applied retroactively, thereby establishing the applicability of a timeliness exception under 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(iii).[1] In September of 2015, the PCRA court held an evidentiary hearing and on November 13, 2015, the PCRA court issued an opinion and order denying the petition. See Docket No. CP-37-CR-0000536-2006. McCurdy appealed to the Superior Court, and on February 9, 2017, the Superior Court affirmed the lower court's decision, concluding, as did the PCRA court, that the second petition was untimely and that McCurdy had failed to establish the applicability of a timeliness exception.[2]

         On November 6, 2017, this Court received for filing the instant petition for writ of habeas corpus, although the certification signed by McCurdy indicates that he placed the petition in the prison mailing system on August 3, 2017. (ECF No. 2 at p. 15). In his petition, McCurdy claims that he is “actually innocent” and that his corrupt organizations conviction must be vacated based on Commonwealth v. Besch, 674 A.2d 655 (Pa. 1996), an argument which has not been raised previously in any of McCurdy's state court proceedings.

         Respondents filed the instant motion to dismiss (ECF No. 6) and a supplement to motion to dismiss (ECF No. 12), in which they argue that the petition is untimely and that neither McCurdy's argument that he is “actually innocent” nor the decision in Besch entitle McCurdy to equitable tolling. The Court ordered McCurdy to respond to the motion by January 2, 2017, and advised him that failure to file a response will result in the motion being decided without the benefit of his response. To date, McCurdy has neither filed a response nor has he sought an extension of time in which to do so. The matter is ripe for disposition.

         II. Discussion

         A. ...


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