United States District Court, W.D. Pennsylvania
S. Cercone United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy United States Magistrate Judge
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.
Relevant and Procedural Background
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
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.
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.
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). 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
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.
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