BAILEY v. ECHARD, No. 2:2014cv01626 - Document 8 (W.D. Pa. 2014)

Court Description: MEMORANDUM OPINION & ORDER re 5 Petition for Writ of Habeas Corpus filed by VANN LAMONT BAILEY directing him to show cause on or before December 31, 2014, as to why the petition should not be dismissed as time barred. Signed by Magistrate Judge Robert C. Mitchell on 12/11/2014. (Mitchell, Robert)

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BAILEY v. ECHARD Doc. 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA V NN LAMONT BAILEY, BE­5699, A Petitioner, v. J. ECHARD, Respondent. ) ) ) ) 2: 14­cv­1626 ) ) ) MEMORANDUM and ORDER Mitchell, M.1.: Vann Lamont Bailey has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. In the instant petition, Bailey seeks to challenge his conviction by a jury of homicide at No. CP­02­CR­3736­1989. On February 26, 1990, a ten to twenty year sentence was imposed.] An appeal was taken to the Superior Court and the judgment of sentence was affirmed on May 24, 1991. 2 Bailey then commenced filing post­conviction petitions in the Court of Common Pleas. On January 7, 1994 post conviction relief was denied. The denial was affirmed on March 14, 1995 and leave to appeal was denied by the Pennsylvania Supreme Court on October 3, 1995. 3 Subsequent post­conviction petitions were dismissed as time­barred on October 27,2004, September 21,2007, October 14,2010, August 23,2011, January 17,2014 and June 16,2014.4 Bailey now comes before this Court and contends "Petitioner was never properly charged for the criminal homicide" on the grounds that "the coroners of Pennsylvania were stripped of their power to act as committing magistrates by the Pennsylvania Constitution of 1968.,,5 It is provided in 28 U.S.C. §§ 2244(d)(l) and (d)(2) that: Bailey was also convicted of burglary, rape, indecent sexual assault, and aggravated assault CP­02­CR­34341989) which was the subject of a habeas petition filed at 2:09­cv­199, and burglary (CP­02­CR­4403­1989). See: Petition at 1­6. 2 See: Court of Common Pleas of Allegheny County docket sheet at CP­02­CR­3736­1989. 3 See: Superior Court docket no. 181 PGH 1994. 4 See: Exhibits attached to this Memorandum 5 See: Petitioner's memorandum at p.2. I Dockets.Justia.com (l) A I­year period oflimitation shall apply to the 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 - (A) The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) The date on which the impediment to filing an application created by State action in violation of the Constitution or laws ofthe United States is removed, if the applicant was prevented from filing by such State action; (C) The date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) The date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post­conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. An untimely post­conviction petition is not "properly filed". Pace v. DiGulglielmo, 544 U.S. 408 (2005). In the instant case, the judgment of sentence was affirmed on May 24, 1991 and leave to appeal to the Pennsylvania Supreme Court was not sought. As a result the conviction became final on June 23, 1991 when the time in which to seek such review expired. Gonzalez v. Thaler, 132 S.Ct. 641 (2012).6 The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here. The petitioner then filed several post­conviction petitions which were dismisses as untimely and for this reason they were not "properly filed" petitions. Thus, far in excess of the one year period in which to seek relief here has expired, and for that reason the instant petition is time barred. However, under limited circumstances this time bar may be equitably tolled and for this reason the petitioner will be granted time in which to demonstrate a basis for equitable tolling, if any. United States v. Bendolph, 409 F.3d 155, 168 (3d Cir.2005)(en banc). An appropriate Order will be entered. 6 Pa.R.App.P. 903. 2 ORDER ] AND NOW, this 1 th of December, 2014, for the reasons set forth in the foregoing Memorandum, IT IS ORDERED that on or before December 31,2014, petitioner show cause if any, why the instant petition should not be dismissed as time barred. sl Robert C. Mitchell United States Magistrate Judge 3 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY PENNSYLVANIA CRlMlNAL DIVISION COMMONWEALTH OF PENNSYLVANIA ) ) ) ) CC 8903343 v. ) ) VANN L. BAILEY ) ORDER OF COURT DISMISSING PCRA PETITION AND TRIAL COURT'S STATEMENT UNDE.R fA. R.A.P. ] 25 Ca) 9 And Now, this l --rtk. day of d 'ttl(. defendant'S P.C.R.A. Petition, as amended by counsel, is dismissed without a hearing because 1) The dismissal ofdefendant's first PCRA petition was affinned by the Superior Court at No. 181 Pittsburgh 1994; and 2) The petition is time­batred. CmU1sel will not be appointed because defendant has not made a strong (acif': showing of a miscarriage ofjustice. Defendant1s motion to proceed in forma pauperis is granted. BY THE COURT IMPORTANT NOTICE COMMONWEALTH OF PENNSYLVANIA ) ) ) ) CC 8903434 Y. ) ) ) V NN L. BAILEY A ORDER OF COURT DISMISSING TIHRD PCRA PETITION AND TRIAL COURT'S STATEMENT UNDER PA. R.A.P. 1925 (a) And Now, this :> iJ r day of 2007, defendant'. third P.C.R.A.petition, filed March 23, 2007, is dismissed without a hearing because it is time­barred. Counsel has not been appointed becawe defendant has not made a strong prima facie showing of a miscarriage of j.ustice. BY THE COURT 1. IMPORTANT NOTICE If you want to appeal this order denying your Post Conviction Relief Act Petition, you must do so in writing withlng thirty days from the above date. You should contact your attorney immediatelY, if you have retained one. cc: District Attorneys Office, Post Trial Unit Vann L. Bailey (by certified mail) IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY. PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA va. CC 8903736 VANN L. BAILEY OBDER OF COURT DISMISSING eCRA PETITIOli AND TRIAL COURrS STATEMENT UNDER Pa. S.AP. 1925(a). I C( ­r­ )., AND NOW, this ­­­=_..:......­_ _ day of (1\ ( \.2'" ("I? (' lJ \. _./ '. ,2010, it is hereby ordered that defendant's filing of September 14, 2010, whioh is being treated as his latest PCRA petition, is dismissed without a hearing because it is time­barred. Defendant's objection to the Court's notice of intention to dism iss is overruled. BYTHE COURT J. IMPORTANT NOTICE If you want to appeal this order denying your Post Conviction Relief Act Petition, you must do so in writing within thirty days from the above date. You should contact your lawyer immediately. if you have retained one. cc: District Attorney's Office, Post Trial Unit Vann L. Bailey (by certified mail) IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CRIMINAL DMSION COMMONWEALTH OF PENNSYLVANIA v. CC 8903736 VANN L. BAILEY ORDER OF COURT PISMISSING PCRA E!ETfTION AND TRIAL COURT'S STATEMENT UNDER PA. R.A.P. 1925 Cal And Now, this '" 1cJ day of If U, ,.1 r- , 2011. defendanfs pro sa PCRA petition filed August 10,2010, as amended by his counselled petition filed June 27.2011, is hereby dismissed without a hearing because it is time­ barred. BY THE COURT ___ J. IMPORTANT NOTICE If you want to appeal this order denying your Post Conviction Relief Act Petition, you must do so in writing withing thirty days from the above date. You should contact your lawyer immediately. cc: Ron Wabby, Esq. Carl Marcus, Esq. Vann L. Bailey (by certified mail) IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PE q CRIMINAL DIVISION Rdtv£O i? JAN COMMONWEALTH OF PENNSYLVANIA 4COA v. CC 89­03736 .P ­> ' 20 ...,..ls U VANN L. BAILEY Defendant Notice of Intention to Dismiss Defendant's PCRA Petition Under P.R. Crim. P. 907 On February 26, 1990, defendant was sentenced to an aggregate peri of imprisonment of not less than 45 nor more than 90 years at the above numders. This irrefutable fact was recognized by the Superior Court in its Judgment drder dated May 27,2011, at No. 1782 WDA 2010. (Also see pages 32­33 of the sentencing transcript dated February 26, 1990). Defendanfs pro sa filing of December 16, 2013, entitled "Motion to Modify Sentence Correction of lIIeg I Sentence," appears to seek a declaration that he was sentenced only to a Jriod of imprisonment of not less than 25 nor more than 50 years. The Decemberl16. 2013, filing will be treated as a successive PCP.A petition. Notice is hereby Jiven that it will be dismissed without a hearing as time­barred or, alternatively, as patently meritiess. BY THE COURT A.U. cc: District Attorney's Office, Post Trial Unit Vann L Bailey I i , CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA v. CC 89­03736 VANN L. BAILE.Y ORDER OF COURT DISMISSING PCRA PETITON AND TRIAL COURT'S STATEMENT UNDER PA. RAP. 1925 (al ...... J AND NOW, this I l""\ J,,''fJ day of 1ii'••• IIRbu, '.118, it is hereby ordered that defendant's pro se filing of December 16. 2013, entitled "Motion to Modify Sentence Correction of Illegal Sentence." as amended by his filing of January 3, 2014, which is being treated as a successive PCRA petition, is dismissed without a hearing for the reasons stated in my Notice entered on the docket on December 27,2013. BYTHE COURT J. IMPORTANT NOTICE If you want to appeal this order denying your Post Conviction Relief Act Petition. you must do so in writing within thirty days from the above date. You should contact your lawyer immediately, if you have retained one. co; District Attorney's Office, Post Trial Unit Vann L Bailey (by certified mail) IN THE COURT OF COMMON PLEAS OF ALLEGHENY ­"" ­", !' PENNSYLVANIA . \ .. 't COMMONWEALTH OF PENNSYLVANIA v. CC 89 ­ 03434 . \ CRIMINAL DIVISION . .. VANN L. BAILEY Defendant Second Notice of Intention to Dismiss Defendant's PCRA Petition Under P.R. Crim. P. 907 Notice is hereby gIven that defendant's successive pro se PCRA petition filed August 12, 2013, will be dismissed without a hearing because it is timebarred. The first notice pertaining to the August 12, 2013 petition was stricken by order entered January 31,2014. BY THE COURT J. District Attorney's Office, Post Trial Unit l ,­• .to # .... " .. ... " cc: Vann L. Bailey · lUM 1 S • •

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