United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE
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).
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,
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
courthouse 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 Super. 2011) (unpublished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
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).
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 ...