United States District Court, M.D. Pennsylvania
VINCENT C. McGEE, Petitioner
MARK CAPOZZA, Superintendent Respondent
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
Vincent McGee, an inmate confined in the Fayette State
Correctional Institution, LaBelle, Pennsylvania, filed the
instant petition for writ of habeas corpus pursuant to 28
U.S.C. §2254. He attacks a 2002 conviction imposed by
the Court of Common Pleas for Centre County, Pennsylvania.
(Doc. 1). Following careful consideration of the
parties' submissions, and for the reasons discussed
below, the Court will dismiss the petition as untimely.
See 28 U.S.C. §2244(d).
portion of the factual and procedural background of this case
has been extracted from the Pennsylvania Superior Court's
March 31, 2004 Memorandum Opinion affirming McGee's
conviction and sentence. (See (Doc. 15 at
The testimony at trial established that on November 8, 2001,
Amy McGee was working as a employee at Verizon Wireless when
she called home to speak to her two-year-old son. Amy
realized that Appellant, who had a history of alcohol abuse
and was home with his and Amy's two children, was
intoxicated. Amy went home and made arrangements for her
parents to baby-sit the children. When Amy returned to work
that afternoon, she told one of her co-workers that it was
over between her and Appellant, and that she wasn't going
back to him. Appellant called the store several times that
day to speak with Amy, and eventually appeared at the store
in person and followed Amy around. Subsequently, Appellant
left the store with the truck that Amy had driven to work. At
the end of the day, Amy's parents picked her up and Amy,
her parents, and the children went to a restaurant for
dinner. Appellant arrived at the restaurant, at which time
Amy told him he had until the next day to move out of the
house. Appellant stated that he was not going to leave
without his sons; he then went home.
After dinner, Amy's parents drove her to her house so
that she could pick up some clothing for the children. Amy
went into the house, and approximately ten minutes later,
Appellant came to the door and told Amy's parents to come
inside because he had just shot Amy. When the police arrived
at the residence, they saw Appellant in the living room
leaning over Amy, who had a single gunshot wound to the head.
Appellant told the officers that he had been seated in a
recliner chair, with Amy standing nearby, when the gun the
Appellant had tucked into his waistband became uncomfortable.
Appellant claimed that he decided to move the gun from his
left side to his right, and that as he did so, the gun
accidentally discharged and the bullet struck his wife. The
forensic evidence indicated, however, that the bullet
traveled from the top of Amy's skull downward.
That same day, Appellant was arrested and charged with
first-degree murder, third-degree murder, voluntary
manslaughter and involuntary manslaughter. Prior to trial,
Appellant filed an omnibus pretrial motion wherein he
requested, inter alia, an amendment of the bill of
information and suppression of his post-arrest statements to
police. The motion was denied, in relevant part, by the trial
court on May 20, 2002. At trial, the Commonwealth proceeded
on the murder charges alone, and on September 19, 2002,
Appellant was convicted of first-degree murder. He was
immediately sentenced to life imprisonment. On September 27,
2002, Appellant filed timely post-sentence motions, which
were denied by the trial court on February 10, 2003. This
timely appeal followed.
appeal, Appellant presents the following issues for our
1. Did the Trial Court commit reversible error in denying
appellant's Motion in Limine, in allowing numerous
co-workers of Amy McGee to testify to hearsay statements made
by her to them, and in denying appellant's Motion for
Mistrial raised during the testimony of co-worker Timothy
Guffey when he testified that Amy McGee had told him that
appellant had punched her in the nose several months prior to
her shooting death?
2. Did the Trial Court commit reversible error in denying
appellant's Omnibus Pre-Trial Motions in the nature of
Motions to Suppress Statements?
3. Did the Trial Court commit reversible error in denying
appellant's Motion in Limine and Supplemental Motion in
Limine and allowing Trooper Brian Hoover to testify as to the
Bedford County incident on October 17, 1999, resulting in
appellant being charged with Recklessly Endangering Another
Person, that did not result in a conviction?
4. Did the Trial Court commit reversible error in denying
appellant's Motion to Amend Bill of Information to
include a count of Voluntary Manslaughter, an offense on
which appellant was initially charged and bound over to stand
Trial, and in refusing to charge the Jury on Voluntary
Manslaughter and to include it on the Verdict Slip?
5. Did the Trial Court commit reversible error in refusing to
recharge the Jury on the defense of Voluntary Intoxication
when it re-instructed the Jury on the elements of First
Degree Murder and Third Degree Murder?
(See Doc. 15 at 6, Memorandum Opinion). By
Memorandum Opinion dated March 31, 2004, the Pennsylvania
Superior Court affirmed Petitioner's first-degree murder
conviction. Id. By Order dated July 21, 2004, the
Pennsylvania State Supreme Court denied McGee's petition
for allowance of appeal. (Doc. 15 at 22, Order).
18, 2005, Petitioner, acting pro se, filed a
petition under Pennsylvania's Post Conviction Relief Act,
42 Pa. C.S.A. §§ 9541, et seq.
(“PCRA”). (Doc. 15 at 41, PCRA
petition). He raised eighteen (18) claims of ineffective
assistance of counsel and one (1) claim of prosecutorial
misconduct. Id. McGee's PCRA petition was
amended on December 7, 2007. (Doc. 15 at 39, Amended
PCRA petition). On January 30, 2007, counsel was appointed to
represent McGee in his PCRA proceedings. Commonwealth v.
McGee, Docket No. CP-14-CR-0001842-2001.
hearing was held on March 12, 2009, with Petitioner present.
28, 2009, the Commonwealth filed a motion to reopen the
Orders dated August 5, 2009, and November 4, 2009, the PCRA
court scheduled video conferences ...