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Upshaw v. Tice

United States District Court, W.D. Pennsylvania

May 10, 2019

MARCUS UPSHAW, Petitioner,
v.
ERIC TICE, Superintendent; DISTRICT ATTORNEY OF ALLEGHENY COUNTY; and ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          United States District Judge Nora Barry Fischer

          REPORT AND RECOMMENDATION

          CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         It is 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.

         II. REPORT[1]

         Presently 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.

         No 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).

         On 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).

         On 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).

         On 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.

         On 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.

         On 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).

         On 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. 903(a).

         On 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 ...


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