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Carson v. Mooney

United States District Court, M.D. Pennsylvania

November 12, 2019

VINCE MOONEY, Respondent



         Petitioner, George Carson, an inmate confined in the Retreat State Correctional Institution, Hunlock Creek, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. He attacks a conviction imposed by the Court of Common Pleas for Luzerne 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).

         I. Background

         The following background has been extracted from the Pennsylvania Superior Court's March 28, 2016 Memorandum Opinion affirming the sentencing court's dismissal of Petitioner's second petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541 - 9546, as untimely. (Doc. 22-3 at 15 - 20, Memorandum Opinion).

On March 26, 2009, Appellant pled guilty to one count of murder in the third degree for his involvement in the death of his step-son, Kevin Sult. On May 28, 2009, Appellant was sentenced to a term of 19 to 38 years' imprisonment.
On June 8, 2009, [Appellant] filed a motion to modify sentence. Among the issues raised were: the victim's mental health, to include reference to psychological records of the victim which were provided by the District Attorney's office; the fact [Appellant] had called the court[]house[] in April of 2008 seeking help via the protection from abuse (PFA) office; that on or about April of 2007 [Appellant] had contacted the Wilkes-Barre Township police department with respect to a violent incident regarding the victim; that [Appellant] alleged Shawn Sult, brother of the victim, authored letter[s] to [Magisterial District Judge (MDJ) James] Tupper expressing concerns about the victim; and [Appellant] made reference to calls to the Jackson Township Department with respect to property damage occasioned by the victim's conduct. It is also noteworthy that, at the time of sentencing, [Appellant's] counsel provided a sentencing memorandum to the [c]ourt outlining these similar incidents concerning the victim's alleged conduct.
PCRA Court Opinion, 10/20/2015, at 2 (footnote omitted; emphasis in original).
Appellant's motion for modification of sentence was denied on June 12, 2009. Appellant timely filed an appeal and on March 8, 2011, a panel of this Court affirmed this judgment of sentence. Commonwealth v. Carson, 26 A.3d 1182 (Pa. Super. 2011) (unpublished memorandum). Appellant did not seek review by the Pennsylvania Supreme Court.
On April 25, 2011, Appellant timely filed a PCRA petition, raising challenges to the legality of his sentence and the effectiveness of his plea counsel. In this petition, Appellant named MDJ Tupper as a witness to “the documented lawlessness, violent and destructive behavior of [the victim], and habitual drunkenness and substance abuse” and alleged that the judge would testify on his behalf. PCRA petition, 4/25/2011, at 6. On December 19, 2012, the PCRA court issued notice of its intent to dismiss Appellant's petition without a hearing pursuant to Pa.R.Crim.P. 907. On April 10, 2013, after consideration of Appellant's response to its notice, the PCRA court entered an order dismissing the petition. No appeal filed.
On December 4, 2014, Appellant filed the PCRA petition at issue here, in which he purported to raise claims of ineffective assistance of counsel and after-discovered evidence.
On February 27, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice with respect to this petition. Appellant filed a response. The court formally dismissed the petition on June 1, 2015 and Appellant timely filed a notice of appeal.

(Doc. 22-3 at 15 - 20, Memorandum Opinion). By Memorandum Opinion dated March 28, 2016, the Superior Court affirmed the PCRA Court's dismissal of Petitioner's second PCRA petition as untimely. Id. Petitioner filed a timely Petition for Allowance of Appeal with the Supreme Court of Pennsylvania, which was denied by Order dated September 28, 2016. (Doc. 22-4 at 83, Order).

         On June 27, 2016, Petitioner filed a third PCRA petition, which was dismissed as untimely on December 14, 2016 by the PCRA Court. (Doc. 22-4 at 8, Order). Petitioner filed an appeal to the Superior Court, which was docketed at 77 MDA 2017. The Superior Court found Carson's third PCRA untimely and affirmed the PCRA Court's dismissal on June 20, 2017. Commonwealth v. Carson, 77 MDA 2017. Instead of filing a Petition for ...

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