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Fitzgerald v. Garman

United States District Court, E.D. Pennsylvania

May 17, 2019

TYRONE FITZGERALD, Petitioner,
v.
MARK GARMAN, et al. Respondents.

          REPORT AND RECOMMENDATION

          LYNNE A. SITARSKI, UNITED STATES MAGISTRATE JUDGE

          Before the Court is a pro se Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Tyrone Fitzgerald ("Petitioner"), an individual currently incarcerated at the State Correctional Institution-Rockview. This matter has been referred to me for a Report and Recommendation. For the following reasons, I respectfully recommend that the petition for habeas corpus be DISMISSED with prejudice as untimely.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]

         The Pennsylvania Superior Court provided the following recitation of the facts in its decision affirming Petitioner's judgment of sentence:

In the early morning hours of July 13, 1986[, ] Yvonne Strickland was sitting on the steps of her mother's house at St. Albans Street near 22nd Street when she was approached by defendants Steele and [Petitioner]. Defendant Steele asked if she had any money. She replied that she had no money but suggested that the defendants take some money from Morris Johnson who at the time was walking down St. Albans Street with the decedent, Frank Tucker. The decedent and Morris Johnson turned the corner and sat on the steps of Mr. Johnson's house at 2111 Clymer Street. Shortly thereafter defendants Steele and [Petitioner] approached them, Steele said, "this is a stick-up" and took two hundred dollars from Johnson's pocket. After Steele removed the money from Johnson's pocket, and the defendants turned to go, Steele turned around and shot the decedent in the back of the head causing his death. Later that same evening [Petitioner] disposed of the gun by giving it to Carzella Green.

Commonwealth v. Fitzgerald, No. 1185-PHL-92, 635 A.2d 202 (Pa. Super. Ct. Aug. 25, 1993) (Table); see also SCR No. D-10, D-19.

         On March 30, 1988, following a jury trial, Petitioner was convicted of second-degree murder, two counts of robbery, criminal conspiracy, and possession of an instrument of crime (PIC). (Crim. Docket at 3-4). Petitioner was sentenced to life imprisonment. (Id.). After his direct appellate rights were reinstated nunc pro tune, Petitioner appealed. (SCR No. D-16, D-17). The Pennsylvania Superior Court affirmed his judgment of sentence on August 25, 1993. Fitzgerald, No. 1185-PHL-92, 635 A.2d 202 (Table); SCR No. D-19. Petitioner filed a Petition for Allowance of Appeal, which the Pennsylvania Supreme Court denied on March 9, 1994. Commonwealth v. Fitzgerald, No. 674 ED 1993; 642 A.2d 483 (Pa. Mar. 9, 1994) (Table).

         On August 24, 2004, Petitioner filed a petition for relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. (See Crim. Docket at 5; see also Pet'r's PCRA Pet., 8/24/04). On October 19, 2005, the PCRA Court dismissed his petition. (Crim. Docket at 7). Petitioner did not appeal. He filed a second PCRA Petition on December 25, 2012. (Id. at 7). His second Petition was dismissed as untimely. (Id. at 8). He did not appeal. (See id.).

         On October 17, 2017, Petitioner filed the instant pro se petition for habeas corpus, raising the following claims for relief (recited verbatim):

(1) U.S. Constitution First Amendment Violation (Right to Petition)
(2) U.S. Constitution Fifth Amendment Violation (Due Process)
(3) U.S. Constitu[t]ion Fourteenth Amendment (Due Process and Equal Protection) and U.S. Constitu[t]ion Thirteenth Amendment (Prohibition of Slavery and Involuntary Servitude)
(4) Manipulating the Docket and/or Inaccurate Docket Statement, also ...

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