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McGowan v. Ransom

United States District Court, E.D. Pennsylvania

August 12, 2019

DAVID MCGOWAN, Petitioner,
KEVIN RANSOM, et al., Respondents.



         Before the Court for Report and Recommendation is the pro se petition for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by David McGowan, a prisoner at SCI - Dallas serving a life sentence following his conviction in the Bucks County Court of Common Pleas to a charge of first-degree murder. He seeks habeas relief on what he sets out as three grounds relating to the legality of his sentence and his access to the courts to raise that challenge. As we set out below, McGowan's petition was not filed within the time period set forth by statute and he has not properly presented any of the habeas claims for relief in the state courts. We are filing this Memorandum in support of our order to Petitioner to show cause why this matter should not be dismissed as untimely and/or procedurally defaulted.


         McGowan was tried before a jury and convicted on May 6, 1981 in Case Number CP-09-CR-0000027-1981 of murder in the first degree. The case proceeded to a capital sentencing phase but the jury recommended a sentence of life imprisonment. (CCP Crim. Dkt. at 8.) McGowan filed a motion in arrest of judgment and for a new trial, on which the court heard argument but which it ultimately denied on December 28, 1982. On February 25, 1983, the Honorable Paul R. Beckert formally imposed the sentence of confinement for life. (Id.) See also Pet. at 2-3. McGowan filed an appeal to the Superior Court, asserting eight instances of trial court error or prosecutorial misconduct related to the guilt phase of his trial. (Pet. at 3, 3a.) At some time not apparent from the record, [1] that court affirmed the judgment of conviction, and the Pennsylvania Supreme Court denied allowance of appeal. (CCP Crim. Dkt. at 10.) See also Pet. at 3-4.

         The state court docket sheet indicates that McGowan filed a petition under the then-applicable Post Conviction Hearing Act (“the PCHA”) on or about April 12, 1990, that counsel was appointed, and that a hearing was held before the Honorable John J. Rufe on July 28, 1993. On August 3, 1993, however, the court denied the petition for PCHA relief. (CCP Crim. Dkt. at 12.) The docket reflects no further challenges until December 11, 2017 - nearly 25 years later - when McGowan filed in the Pennsylvania Supreme Court an application for leave to file original process and a petition for writ of habeas corpus. (Pa. S.Ct. Misc. Dkt., No. 215 MM 2017). The Court granted his application for leave to file original process but denied the petition for a writ of habeas corpus in a per curiam order filed on February 20, 2018. (Id.) On May 14, 2018, McGowan petitioned the United States Supreme Court for a writ of certiorari from the Pennsylvania Supreme Court order of February 20, 2018. See DocketPDF/18/18-5283/54982/2018072016135637200000008.pdf (last visited Aug. 8, 2019). He asserted that his sentence was imposed “under a statute declared unconstitutional for being violative of the 8th and 14th Amendments” and thus “an illegal sentence imposed without authority” and depriving him of his due process rights. (Id., Cert. Pet. at i.) He also asked the Court to consider whether the state supreme court's “unexplained refusal” to allow him to raise that claim on a state habeas petition was a denial of due process. (Id.) The Supreme Court denied his certiorari petition on October 1, 2018. (U.S. S.Ct. Dkt., No. 18-5283.) There are no further notations on the state court dockets of any additional challenges to this conviction.

         McGowan has submitted a pro se § 2254 habeas petition dated July 3, 2019 which was received in the Middle District of Pennsylvania on July 19, 2019 and transferred to this district on July 26, 2019. He contends in Ground One of the petition that he was “unlawfully sentenced to life by a court lacking statutory authorization, ” in that he believes the statutes pursuant to which he was sentenced had been declared unconstitutional and had not yet been amended or replaced. (Pet. at 6.) On a related note, he contends in Ground Three that he was “civilly committed” and not sentenced legally because the judgment of conviction document allegedly failed to identify an enforceable statute authorizing his sentence. (Pet. at 9.) Finally, he asserts in Ground Two that he has a “fundamental constitutional right in this Commonwealth to a writ of habeas corpus, without restriction, ” regardless of other relief made available by state statutes such as the PCRA. (Pet. at 7.) He acknowledges that he did not raise these issues in the direct appeal of his conviction but rather sought to raise them in his petition for a writ of habeas corpus directed to the Pennsylvania Supreme Court in 2017. (Pet. at 6, 8, 9.)

         Where asked on the form to “explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d)[2] does not bar [his] petition, ” McGowan contended that the judgment being challenged was that entered by the Pennsylvania Supreme Court on February 20, 2018, which he contends became final with the United States Supreme Court denial of certiorari on October 1, 2018. (Pet. at 14.) He asserts that his petition is thus timely, as it was initiated prior to October 1, 2019. (Id.)

         On July 29, 2019, the Honorable C. Darnell Jones, II referred this matter to me for preparation of a Report and Recommendation. We have not yet determined that an answer to the petition is required from the Bucks County District Attorney, nor that we require the original state court record from the Court of Common Pleas. See Rule 4, Rules Governing § 2254 Habeas Petitions (contemplating initial review by the court before ordering that an answer to the petition be filed). Before filing our R&R, we believe it necessary to give Petitioner an opportunity to be heard.


         McGowan's petition as presently pled presents a number of impediments to the Court awarding him any relief from his state court conviction. We address two procedural hurdles below in order that McGowan might have an opportunity to come forward with any facts that might support any exception to dismissal on timeliness and/or exhaustion grounds as to any claims that may be cognizable.

         A. Timeliness

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), legislation that pre-dates Petitioner's convictions, imposed a one-year period of limitations for the filing of an application for a writ of habeas corpus. The statute provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of B
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time ...

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