Opinion
2:18-cv-325
10-26-2018
JAMIE COKES, 74254, Petitioner, v. COM. OF PENNSYLVANIA, et al., Respondents.
REPORT and RECOMMENDATION I. Recommendation:
It is respectfully recommended that the petition of Jamie Cokes for a writ of habeas corpus (ECF No. 1) be dismissed as untimely, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied. II. Report:
Jamie Cokes, a former inmate at the Allegheny County Jail has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis.
On October 23, 2018, Cokes filed a change of address demonstrating that he had been released from custody (ECF No.6).
Cokes was convicted on a plea of guilty to charges of aggravated assault with a pen knife and sentenced on June 26, 2011 to 1year and 8 months to 5years incarceration at No. CP-02-CR-11103-2011 in the Court of Common Pleas of Allegheny County, Pennsylvania. No appeal was pursued. On March 14, 2018 he submitted the instant petition for habeas corpus relief contending:
See: ¶¶ 1-8 of the petition.
1. I am being held past my maximum sentence on some violation of probation imposed by Judge Jill E. Rangos in 2011.
2. I am being held in the Allegheny Co. Jail with no trial or any new charges! I was not informed of any charges leaving SCI Forest in Marienville, PA 8-10-16. I was impeded filing a habeas corpus.
3. Ineffective lawyership of Carl Marcus. He only dealt with Dr. Martone in railroading to Torrance States Hospital. So I could not raise any defense issues.
4. I am being held on an unknown detainer that goes back to 2011. I equally before Dr. Martone retired. Martone used to harass [me]verbally for information. I refused to give her.
See: Petition at ¶12.
The County docket sheet also reflects that on January 31, 2017, April 24, 2017 and October 26, 2017, Judge Rangos ordered involuntary treatment.
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.
In the instant case, sentence was imposed on June 26, 2011, no appeal was pursued and the sentence became final on July 26, 2011 when the time in which to appeal expired. Gonzalez v. Thaler, 132 S.Ct. 641 (2012). 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 instant petition was executed on March 6, 2018 or over six and a half years after it could have been submitted. Thus, far in excess of the one-year period in which to seek relief has expired, and the petition here is time barred unless good cause is demonstrated for not invoking the statute. No such showing is made here. We also observed that on three prior occasions, Cokes has submitted habeas corpus petitions to this Court challenging his conviction of involuntary manslaughter and that he no longer remains in custody.
Pa.R.A.P. 903.
See: 2:07-cv-1513, 2:08-cv-77, 2:09-cv-393 and Docket No. 6 in the instant case. --------
Accordingly, it is recommended that the petition of Jamie Cokes for a writ of habeas corpus be dismissed as untimely 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: October 26, 2018