United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
A. SITARSKI, UNITED STATES MAGISTRATE JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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.
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).
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.).
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
(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 ...