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Richardson v. Kauffman

United States District Court, E.D. Pennsylvania

March 29, 2018

KENDALL C. RICHARDSON, Petitioner,
v.
SUPERINTENDENT KEVIN KAUFFMAN; THE DISTRICT ATTORNEY OF THE COUNTY OF LEHIGH; and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

         Report and Recommendation, ECF No. 24 - Adopted in Part and Not Adopted in Part, Remanded

          OPINION

          JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Kendall Richardson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in the Court of Common Pleas of Lehigh County of first degree murder, attempted homicide, robbery, and recklessly endangering another person, and his sentence to a term of life imprisonment. Chief Magistrate Judge Linda K. Caracappa issued a Report and Recommendation (“R&R”) recommending that the habeas corpus petition be dismissed as untimely, to which Richardson filed objections. After de novo review, this Court finds that there is insufficient evidence in the record to determine when the proceedings for Richardson's first petition under Pennsylvania's Post-Conviction Collateral Relief Act, 42 Pa. C.S. §§ 9541-9551, (“PCRA”) were complete, and remands the matter to the Magistrate Judge for further factual development and, if necessary, review of the merits of the habeas claims.

         II. BACKGROUND

         The Magistrate Judge thoroughly discussed the procedural history of this case in the R&R and it will not be repeated herein. See R&R 1-4, ECF No. 24. See also ECF Nos. 11, 16, and 19. This Court repeats only the most relevant dates to the timeliness calculation and those dates Richardson contests in his objections.[1]

         Richardson's sentence became final on January 16, 2012, at which time the one-year period of limitations for him to file a federal habeas petition began to run. See 28 U.S.C. § 2244(d)(1). This period stopped running sixty-five (65) days later on March 22, 2012, [2] when Richardson filed a timely PCRA petition. See 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”). Relief was denied by the PCRA court and, following appeal and recreation of the record, the Pennsylvania Superior Court issued an opinion on September 26, 2014, [3] affirming the PCRA court's decision. See Commonwealth v. Richardson, 2204 EDA 2012 (Pa. Super. Sept. 26, 2014).

         On October 6, 2014, Richardson filed an Application for Reconsideration/Reargument in the Pennsylvania Superior Court, which was denied on November 26, 2014. By that date, the Superior Court had also denied his Application for Remand, which he had filed on November 5, 2014. The Superior Court remitted the record to the Court of Common Pleas of Lehigh County on January 15, 2015, and the Pennsylvania Superior Court's Order dated September 26, 2014, was docketed in the PCRA court on January 23, 2015.

         The instant petition for writ of habeas corpus was filed on November 23, 2015.

         In the R&R, the Magistrate Judge determined that because Richardson failed to file a petition for allowance of appeal with the Pennsylvania Supreme Court, the Superior Court's decision became final thirty days after the court denied Richardson's Application for Reconsideration/Reargument. R&R 6. The Magistrate Judge found that the one-year period of limitations for Richardson to seek federal habeas relief began running again at this time. Id. Considering the time that had expired before the PCRA petition was filed, the Magistrate Judge concluded that a timely federal habeas corpus petition would have to be filed by October 23, 2015. Id. Richardson's petition, however, was not filed until thirty-one days after this deadline.

         III. STANDARD OF REVIEW

         When objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). “District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636(b).” Hill v. Barnacle, 655 F. App'x. 142, 147 (3d Cir. 2016). The “court may accept, reject, or modify, in whole or in part, the findings and recommendations” contained in the report. 28 U.S.C. § 636(b)(1)(C).

         IV. ANALYSIS

         Richardson objects to the Magistrate Judge's use of September 26, 2014, as the date that the Pennsylvania Superior Court affirmed the PCRA court's denial of relief. Richardson argues that because this opinion was not docketed in the Court of Common Pleas of Lehigh County until January 23, 2015, that the January date, as opposed to the September date, should be used in determining when his period of statutory tolling ended. See Objs. 8-15. Richardson cites for support Pennsylvania case law providing that the time for filing an appeal does not begin to run until the docket shows that the order has been entered and served on the party. Id. (citing Yeaple v. Yeaple, 402 A.2d 1022 (Pa. 1979); Jara v. Rexworks Inc., 718 A.2d 788 (Pa. Super. Ct. 1998)). He also relies upon Pennsylvania Rule of Criminal Procedure 114, which states that the clerk of courts shall “promptly” make docket entries containing the date of receipt of the order in the clerk's office, the date appearing on the order, and the date of service. See Pa. R. Crim. P. 114. Richardson asserts that Pennsylvania Rule of Appellate Procedure 108 provides that the date of entry of an order is the day the clerk mails or delivers copies of the order to the parties, and that he never received the Superior Court's orders. Objs. 15. He further contends that because Rule 301(a)(1) of the Pennsylvania Rules of Appellate Procedure states that the time for filing an appeal does not begin to run until the ...


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