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Burke v. Secretary

United States District Court, E.D. Pennsylvania

September 10, 2019

GREGORY S. BURKE, Petitioner,
v.
SECRETARY, PENNSYLVANIA'S DEPARTMENT OF CORRECTIONS, et al., Respondents.

          MEMORANDUM

          DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE

         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 Gregory S. Burke, a prisoner at SCI - Mahanoy serving a life sentence following his conviction in the Philadelphia Court of Common Pleas to a charge of second-degree murder and related charges. Burke, who pled guilty, seeks habeas relief on grounds relating to the entry of a stipulation at his preliminary hearing allegedly without his consent; allegedly false testimony given by a Commonwealth witness at the preliminary hearing; the failure of counsel to develop a record prior to entry of his plea of his alleged diminished capacity and/or incompetence; counsel's failure to present certain medical evidence at his 1987 sentencing hearing; and counsel's failure to appear at a re-sentencing proceeding in 1994 following a partially-successful direct appeal. As we set out below, Burke's petition was not filed within the time period set forth by the governing statute. We are filing this Memorandum in support of our order to Petitioner to show cause why this matter should not be dismissed as untimely.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Following entry of a guilty plea, [1] Burke was convicted of second-degree murder, robbery, and possession of an instrument of crime in Case Number CP-51-CR-0325182-1986. On February 17, 1987, before imposition of sentence, he filed a petition to withdraw his plea, alleging it was involuntary because he suffered mental problems due to a head injury. The court denied the petition and proceeded to impose the agreed-upon sentence. Burke filed an appeal to the Superior Court but then withdrew it. In July of 1989, he filed a state petition for post-conviction relief, which resulted in the grant of a nunc pro tunc appeal to the Superior Court. The Superior Court affirmed his judgment of sentence for second-degree murder but vacated the sentence that had been imposed for robbery, as that conviction merged with the second-degree murder conviction for sentencing purposes. The Superior Court also vacated the suspended sentence that the trial court had imposed on the conspiracy conviction, as a suspended sentence was not permitted under state law in that circumstance. The Pennsylvania Supreme Court denied his petition for allowance of appeal on August 3, 1993 and on January 11, 1994 the trial court re-sentenced him to a concurrent term of five to ten years of imprisonment on the conviction of criminal conspiracy. See Commonwealth v. Burke, No. 500 EDA 2016, 2016 WL 7442288, *1 (Pa. Super. Ct. Dec. 27, 2016) (describing procedural history). The life sentence for second-degree murder was never disturbed.

         Over the ensuing years, Petitioner filed a number of PCRA petitions, all of which were deemed untimely. The first was filed in May 1997 and dismissed in October 1997. Petitioner did not file an appeal from that dismissal. The next was filed on March 27, 2007 and dismissed on April 17, 2009. On March 10, 2010 the Superior Court affirmed the dismissal of that petition as untimely.

         Petitioner filed another PCRA petition on May 10, 2010, as well as a state petition for a writ of habeas corpus on July 13, 2010, which the PCRA Court treated as part of the PCRA petition. The PCRA Court dismissed the petition on June 4, 2013. The Superior Court affirmed the dismissal and the Pennsylvania Supreme Court denied allowance of appeal on April 7, 2015.

         Petitioner again filed state petitions seeking the issuance of a writ of habeas corpus, including one he filed in the Civil Division of the Court of Common Pleas on October 30, 2015, which was transferred to the criminal division and was treated with one filed on December 4, 2015 as a single PCRA petition. The PCRA Court dismissed the petition on January 14, 2016 as untimely, and the Superior Court affirmed on December 27, 2016, agreeing with the lower court that the petition was untimely and noting that the matter had been previously litigated. Id. at *2.

         Burke filed yet another PCRA petition on March 15, 2016, which the Common Pleas Court flagged as implicating the Miller / Montgomery juvenile cases. (CCP Dkt. at 13-14.) The PCRA Court issued a notice of its intent to dismiss the petition as untimely, explaining that his petition did not implicate the Supreme Court's Miller / Montgomery decisions, as Burke was not a juvenile when he was committed the crime. Following the Court's notice to Burke of its intention, the Court dismissed his petition on August 21, 1987. He appealed the decision initially but then withdraw his appeal on March 18, 2018. (CP Dkt. at 17-18.) Burke filed yet another PCRA petition on July 10, 2019 that is still pending. (CP DKt. at 18-19.)

         On or about March 19, 2018, Burke filed in this Court a motion for Rule 60(b)(6) relief, which was docketed at No. 18-mc-64. The Court dismissed the motion and the Third Circuit summarily affirmed. Burke v. Secretary Pennsylvania Dep't of Corrections, No. 18-1964, 747 Fed. App'x 585 (Aug. 29, 2018).

         Burke has now submitted a pro se § 2254 habeas petition. His initial petition was docketed on November 1, 2018 and contained lengthy argument and attachments. He subsequently completed the Court's standard § 2254 petition form on May 24, 2019, to which he also attached a lengthy addendum. (Doc. 7.) 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, ” Burke responded:

This petition is timely as per “AEDPA” (1)(c)
“This constitutional right being asserted is the United States Supreme Court's unanimous decision in McQuiggin v. Perkins (2013) “A new decisional law.”

(Pet. at 17.)

         On September 5, 2019, the Honorable Jeffrey L. Schmehl referred this matter to me for preparation of a Report and Recommendation. We have not yet required that an answer to the petition be filed by the Philadelphia District Attorney. See Rule 4, Rules Governing ยง 2254 Habeas Petitions (contemplating initial review by the court before ordering that an answer to the petition be filed). Before filing our Report and making our Recommendation, however, we find ...


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