United States District Court, W.D. Pennsylvania
States District Judge Nora Barry Fischer
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE
respectfully recommended that the Petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254 by Marcus
Upshaw, pro se, be dismissed as time barred and that a
certificate of appealability be denied.
before the Court is a petition for a writ of habeas corpus
filed by state prisoner Marcus Upshaw
(“Petitioner” or “Upshaw”),
challenging his 2011 jury trial convictions for Second Degree
Murder, one count of Robbery, two (2) counts of Unlawful
Restraint, two (2) counts of Recklessly Endangering Another
Person, and one count of Criminal Conspiracy, for which he
was sentenced to serve a mandatory sentence of life
incarceration without the possibility of parole on the Murder
in the Second Degree conviction, nine to eighteen months
consecutive on each of the Unlawful Restraint convictions,
and no further penalty on the remaining convictions.
post-sentence motions were initially filed and the time limit
for filing a direct appeal expired. On March 25, 2011,
Upshaw, through counsel, filed “Defendant's
Post-Sentence Motions and Motion to Reinstate Appellate
Rights, Nunc Pro Tunc.” The trial court
thereafter reinstated Upshaw's post-sentencing rights and
on September 20, 2011, denied his post-sentence motions.
(Order, 09/20/2011, Commonwealth Exh. 8, ECF 11-1, at 49).
October 3, 2011, Upshaw, through counsel, filed a direct
appeal of his judgment of sentence with the Superior Court of
Pennsylvania. On October 21, 2011, Upshaw, through counsel,
filed a Petition for Remand to Supplement Evidentiary Record
with After Discovered Evidence Pursuant to Pa.R.Crim.P.
720(c). (ECF No. 11-2 at 16). On October 25, 2011, the
Superior Court dismissed Upshaw's appeal and ordered
Upshaw to file a post-sentence motion for a new trial on the
ground of after-discovered evidence in the trial court.
Jurisdiction was relinquished by the appellate court. (Order,
10/25/2011, ECF No. 11-2 at 14).
October 27, 2011, Upshaw, through counsel, filed a second
post-sentence motion, in which he alleged that Commonwealth
witness, Darryl Reese, had come forward and admitted that he
provided false testimony against Petitioner. (ECF No. 11-2).
An evidentiary hearing was held before the Honorable Jill E.
Rangos on March 19, 2012. At the hearing, Upshaw presented
testimony from Darryl Reese. On March 22, 2012, Judge Rangos
denied Upshaw's post-sentencing motion. Order of Court,
3/22/2012 (ECF No. 11-2 at 32 - 33).
April 10, 2012, Upshaw, through counsel, filed a Notice of
Appeal to the Superior Court. On October 12, 2012, the
Superior Court dismissed Upshaw's appeal because a Brief
for Appellant had not been filed. On October 23, 2012, Upshaw
filed a Motion to Reinstate Appellate Rights Nunc Pro
Tunc, which Judge Rangos granted the following day.
November 1, 2012, Upshaw, through counsel, filed a Notice of
Appeal to the Superior Court. On December 11, 2012, Upshaw
again filed a Petition for Remand to Supplement Evidentiary
Record with After Discovered Evidence. On December 13, 2012,
the Superior Court dismissed Upshaw's appeal and ordered
Upshaw to file a post-sentence motion in the trial court
within ten (10) days. This time, the Superior Court retained
jurisdiction. Order, 12/13/2012 (ECF No. 11-4 at 25). On
December 17, 2012, Upshaw, through counsel, filed a Petition
for Remand, based on newly-discovered evidence, specifically
letters allegedly written by Pernell Littleberry.
April 3, 2013, Upshaw, with counsel, again appeared before
Judge Rangos for an evidentiary hearing. Transcript, 4/3/2013
(ECF No. 11-5, at 1-12). Mr. Littleberry asserted his Fifth
Amendment privilege. The hearing was continued until July 11,
2013. Transcript, 7/11/2013 (ECF No. 11-5 at 13 - 25). On
that date, Upshaw, with counsel, again appeared before Judge
Rangos. Mr. Littleberry again asserted his Fifth Amendment
privilege and refused to testify. On July 16, 2013, Judge
Rangos filed a Rule 1925 Statement, which noted that Mr.
Littleberry asserted his Fifth Amendment privilege and no
additional evidence was taken. (ECF No. 11-5 at 27).
March 28, 2014, the Superior Court affirmed the judgment of
sentence of the Court of Common Pleas of Allegheny County.
Memorandum, 03/28/2014 (ECF No. 12-3, at 1- 12). Upshaw did
not file a Petition for Allowance of Appeal in the Supreme
Court of Pennsylvania. Therefore, his judgment became
“final” on April 28, 2014. See Pa.R.A.P.
August 13, 2014, Upshaw, through counsel, filed a timely
petition for post-conviction relief under Pennsylvania's
Post-Conviction Relief Act (“PCRA”), 42 Pa.
Const. Stat. §§ 9541, et seq., in which he
claimed that Darryl Reese had recanted his trial testimony.
On May 18, 2016, Judge Rangos filed an Order of Court which
gave notice of the court's intention to dismiss the PRCA
petition. Order of Court, 5/18/2016 (ECF No. 12-4 at 23).
Upshaw through counsel filed a response to the Notice of
Intention to Dismiss. On June 17, 2016, Judge Rangos
dismissed the PCRA petition, finding that the ...