Opinion
2:18-cv-991
08-06-2018
ERNEST R. BALL, a/k/a David Winwood, AJ-0601, Petitioner, v. MARK CAPOZZA, et al., Respondents.
REPORT and RECOMMENDATION I. Recommendation:
It is respectfully recommended that the petition of Ernest R. Ball a/k/a/ David Winwood for a writ of habeas corpus (ECF No.1) be dismissed as a successive petition filed without receiving leave from the Court of Appeals to file the petition. II. Report:
Ernest R. Ball a/k/a David Winwood, an inmate at the State Correctional Institution Fayette has presented a petition for a writ of habeas corpus seeking to challenge his thirteen to twenty-six year sentence aggregated with another sentence to impose a thirty-two to sixty-four year sentence imposed following his conviction by a jury of sexual abuse of children, rape and involuntary deviate sexual intercourse at No. CP-02-Cr-12033-1985 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on November 12, 1986. However, this is not Ball-Winwood's first federal challenge to that conviction. On January 11, 1999 he filed a similar challenge at 2:99-cv-28. That petition was dismissed on February 12, 2001 and a certificate of appealability was denied.
See: Petition at ¶¶ 1-6.
We note that the public records demonstrate that on April 20, 2017 at No. 957 WDA 2016, the Superior Court determined that his second post-conviction petition was "patently" untimely and as such affirmed its dismissal. On March 21, 2018, the Supreme Court of Pennsylvania denied his petition for allowance of appeal filed at No. 418 WAL 2017.
It is provided in 28 U.S.C. §2244(b)(3)(a) that "before a second or successive application...is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Clearly no such leave has been sought by the petitioner.
In its April 20, 2017 Memorandum, the Superior Court further observed that Ball-Winwood was sentenced in 1986; that his direct appeal was denied on 1988 Commonwealth v. Winwood, 551 A.2d 589 (Pa.Super 1988) and leave to appeal was denied on July 16, 1989, Commonwealth v. Winwood, 559 A.2d 37. Since certiorari was not sought, his conviction became final in 1989. In 1995 he filed a post-conviction petition which was dismissed, the dismissal was affirmed and leave to appeal was denied on January 13, 1998. As noted above his second post-conviction petition was dismissed as "patently" untimely.
See: Superior Court Memorandum at 957 WDA 2016. --------
He now once again comes before this Court in an unauthorized filing which is likewise "patently" untimely. It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:
(1) A 1-year period of limitation 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 -An untimely post-conviction petition is not "properly filed". Pace v. DiGulglielmo, 544 U.S. 408 (2005).
(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 of the 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 post-conviction 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.
Thus, because the instant petition is improperly filed without leave of the court of appeals, and even if properly filed would be untimely, it is recommended that the petition of Ernest R. Ball a/k/a/ David Winwood be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections within fourteen (14) days of this date and mailing them to United States District Court, 700 Grant Street, Pittsburgh PA 15219-1957. Failure to file timely objections will waive the right to appeal.
Respectfully submitted,
s/ Robert C. Mitchell
United States Magistrate Judge Filed: August 6, 2018