IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VINCENT JOHNSON, :

Petitioner :

 :

v. : No. 04-411 

:

DONALD KELCHER, et al., :

Respondents :

MEMORANDUM

GREEN, S.J. September , 2005

Presently pending is the petition for writ of habeas corpus, the Report and

Recommendation (the “Report”) of United States Magistrate Judge Thomas J. Rueter, and

Petitioner’s Objections thereto. Also pending is Petitioner’s Motion for Stay/Abeyance Pending the

Outcome of Petitioner’s PCRA Petition. Petitioner objects to the Magistrate’s conclusion that

Petitioner’s second petition for writ of habeas corpus relief was untimely filed and must be dismissed. 

Petitioner’s objections to the Report are extensive, and for clarity’s sake, the court has categorized

the objections as follows. Petitioner’s first set of objections pertain to perceived procedural mistakes

allegedly made by the Magistrate Judge. Specifically, Petitioner argues that the process under which

his petition was reviewed is flawed because the Magistrate Judge did not have opportunity to review

the transcripts and other exhibits Petitioner submitted after the filing of the petition. He also argues

that he was not given an opportunity to reply to the Respondent’s motion to dismiss his petition before

the Magistrate Judge issued the Report. Petitioner also argues the instant petition is not time barred

because the state misled him by failing to provide all exculpatory evidence, namely the statement of

Larry King and other statements contained in a homicide binder. He asserts that this allegedly crucial

and exculpatory information was not available to him and therefore he is not time-barred. Petitioner

further claims he meets the standard of being “actually innocent” due to constitutional violations, in

that the Commonwealth of Pennsylvania allegedly threatened Mr. King if he testified on Petitioner’s

behalf. He finally argues that any procedural default should be excused because he is actually

innocent of this crime for which he was convicted. For the reasons set forth below, Petitioner’s

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Objections will be overruled and the Report will be approved. Petitioner’s Motion for Stay/Abeyance

Pending the Outcome of his PCRA Petition will be denied.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was convicted of first degree murder and two counts of attempted

aggravated robbery in March 1973. He was sentenced to a term of years for the robbery conviction

and to life imprisonment for the murder conviction, the terms to run concurrently. The conviction was

affirmed by the Pennsylvania Supreme Court in October 1974. In January 1981, Petitioner filed his

first petition for collateral relief under Pennsylvania’s Post Conviction Hearing Act (“PCHA”). The

PCHA court denied the petition. The Superior Court of Pennsylvania reversed the PCHA court and

ordered a new trial. On October 15, 1987, however, the Supreme Court of Pennsylvania reversed the

Superior Court and reinstated the conviction and sentence. 

In April 1997 Petitioner filed his first petition for a writ of habeas corpus in this court. 

In January 1998, the petition was dismissed. Petitioner appealed that dismissal and the Court of

Appeals for the Third Circuit affirmed the dismissal in August 2000. In April 2000, Petitioner filed a

second petition for collateral relief in Pennsylvania state court pursuant to the Post Conviction Relief

Act (“PCRA”). The PCRA court dismissed the petition as untimely and said dismissal was ultimately

upheld by the Supreme Court of Pennsylvania in December 2002.

On November 20, 2003 Petitioner sought from the Court of Appeals for the Third

Circuit permission to file a second or successive habeas petition. In December 2003, the Court of

Appeals for the Third Circuit granted Petitioner’s request to file a second or successive habeas

petition. In its order the Court of Appeals directed Petitioner “to focus the petition primarily on the

allegation that the District Attorney’s Office failed to disclose the arguably favorable evidence that

[Larry] King asserted before the Board of Pardons that he was threatened by the prosecutor if he

testified and that, in an interview with the Pennsylvania Board of Probation and Parole, King had

asserted that Johnson was innocent of murder.” In re Vincent Johnson, C.A. No. 03-4297. Petitioner

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Petitioner’s claims for relief are based upon the following grounds: (Ground 1

One) the Prosecutor threatened to charge Larry King with murder if he testified in favor of

Petitioner; (Ground Two) when appearing before the Pennsylvania Parole Board, Larry King

stated that he knew that Petitioner had not commited the murder because Petitioner was with

Mr. King the entire evening of the murder; (Ground Three) the Prosecutor suppressed evidence

in that the District Attorney’s office obtained allegedly crucial and exculpatory statements from

witnessess but did not provided the statesments to Petitioner until 2000; (Ground Four) the

Prosecutor failed to disclose that its sole witness had a history of prior crimes, (Ground Five)

the Prosecutor knowingly withheld unfavorable polygraph results of its witnesses; (Ground Six)

the police made prejudicial remarks during trial that effected the jury’s verdict; (Ground Seven;

trial counsel was ineffective for failing to file a pre-trial statement; (Ground Eight) trial counsel

was ineffective for failing to request statements of other witnesses made to District Attorney;

(Ground Nine) trial counsel was ineffective for failing to obtain statements of asserted alibi

witnesses; (Ground Ten) the trial judge committed error in stating that trial counsel made no

requests for the production of prior statements by certain witnesses.

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filed a second petition for writ of habeas corpus relief in this court on January 29, 2004 which included

ten grounds for relief, most of which do not focus on Larry King’s allegations. 

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DISCUSSION

A petition for habeas corpus relief will not be granted unless the Petitioner can

establish that the state court’s determination of his claims resulted in a decision that was “contrary to,

or involved an unreasonable application of, clearly established federal law..., or resulted in a decision

that was based on an unreasonable determination of the facts in light of the evidence presented in the

state court proceeding.” Williams v. Taylor, 529 U.S. 362, 130 C. Ct. 1495, 1504 (2000). For habeas

corpus review, a state court’s factual findings “shall be presumed to be correct,” and a habeas

petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996). 

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), became

effective on April 26, 1996. It provides applicants with a one-year period of limitation from its effective

date, or the date on which the judgment of conviction became final by the conclusion of direct review

or the expiration of time to seek such review, within which to file a petition for writ of habeas corpus. 

Accordingly, applicants convicted prior to April 26, 1996 had until April 26, 1997 to timely file a petition

for writ of habeas corpus. See, Miller v. New Jersey State Dep’t of Corrections, 145 F.3d 615, 617-18

(3d Cir. 1998). The statute also provides that a properly filed application for state post-conviction

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Even if this court were to determine that Petitioner’s first habeas petitioner was 2

the timely assertion of his rights, but in a wrong forum, that petition was filed on April 21, 2007 -

only 5 days prior to the expiration of the statute of limitations. Therefore, assuming arguendo

that the first habeas petition tolled the statute of limitations, review of that petition concluded on

September 31, 2000. The instant petition would have had to been filed on or before October 4,

2000. Although Petitioner filed a PCRA petition on April 27, 2000 arguably further tolling the

limitations period, review of that petition concluded on August 27, 2003. Because only three

days remained in the limitations period, under this scenario the instant petition was required to

have been filed on or before September 2, 2003 (August 30, 2003 fell on a weekend and

September 1, 2003 was a federal holiday). Petitioner did not seek permission to file the instant

petition until November 20, 2003. Thus, he would still be time barred.

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relief shall be counted toward any period of limitation under the statute, thereby effectively tolling the

statute during the pendency of any PCRA claims. Petitioner was convicted in 1973 and direct review

of his conviction concluded in 1975. Therefore, Petitioner’s one year statute of limitations began to

run on AEDPA’s effective date, April 26, 1996 and expired on April 26, 1997. The one year limitations

period, however, must be tolled for the time during which any PCHA or PCRA petitions were pending. 

Although Petitioner filed a PCHA petition in 1981 - the review of which concluded on

October 15, 1987 - he filed no other petitions for collateral review until April 21, 1997 when he filed his

first petition for a writ of habeas corpus relief in this court. At that point three hundred, sixty-two days

of the three hundred, sixty-five day limitations period had run. The Supreme Court has held that the

filing of a federal habeas petition does not toll AEDPA’s limitations period and that only applications

for State post-conviction or other collateral review will do so. Duncan v. Walker, 533 U.S. 167, 121

S.Ct. 2120 (2001). Therefore, Petitioner’s first habeas petition did not toll the running of the statute of

limitations period. The limitations period expired on April 26, 1997. The instant petition was not filed

until January 2004. Pursuant to Jones v. Morton, 195 F.3d 153, 159 (3d. Cir. 1999), the limitations

period may only be equitably tolled when the state has actively misled the petitioner, or if there are

extraordinary circumstances that prevented petitioner from asserting his rights, or if petitioner timely

asserted his rights, but in the wrong forum.2

Construing his Objections liberally, Petitioner argues that the state actively misled him

and also that extraordinary circumstances prevented him from asserting his rights. Specifically,

Petitioner argues that the District Attorney withheld the exculpatory statements of other witnesses and

also that his belated discovery of the District Attorney’s alleged threats against Larry King prevented

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In May 1998, Petitioner’s first habeas petition was pending in this court. Review

of that petition did not conclude until August 2000. However, that petition did not toll any state

statute of limitations periods for filing a PCRA petition based on the newly discovered

statements of Mr. King. It should be noted that Petitioner filed a second post-conviction petition

pursuant to the PCRA in April 2000 - before the conclusion of review of his first habeas petition

- in which he included claims based upon Mr. King’s statements and also based upon evidence

discovered in the homicide binder he obtained in February 2000.

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Petitioner from asserting his rights. At the latest Petitioner became aware of Larry King’s claims when

Mr. King testified at Petitioner’s Parole Board commutation hearing in May 1998. At that time Mr.

King stated that he did not testify at Petitioner’s trial because an Assistant District Attorney informed

him that if he did so, he would be charged in the murder. Therefore, in May 1998 Petitioner had firsthand knowledge of Mr. King’s assertions and was required to diligently pursue any claims based on

Mr. King’s assertions at that time. As noted in the Superior Court of Pennsylvania’s opinion 3

concerning Petitioner’s PCRA petition, Petitioner did not present any claims based upon Mr. King’s

assertions to any court until he filed his second state post-conviction in April 2000. The Superior

Court affirmed the dismissal of that petition finding that those claims, as well as the claims based on

the evidence obtained from the homicide binder were time barred. Comm. v. Johnson, 817 A.2d

1179 (Pa. Super. Ct. 2002). The court found that these claims are procedurally defaulted due to

untimeliness. Id. Once a petitioner has procedurally defaulted, he must establish cause and prejudice

sufficient to excuse his failure to adhere to the established procedural guidelines. See, Schulp v.

Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 861 (1995). After the procedural default, his alleged

constitutional violations can only be reviewed if his claims fall within the narrow class of cases

implicating a fundamental miscarriage of justice. Id. Petitioner has not established cause and

prejudice sufficient to establish his failure to adhere to the state’s deadlines. 

Notably, Mr. King wrote a letter detailing these allegations on September 7, 1996 well

before the expiration of AEDPA’s April 26, 1997 limitations period. The claims concerning Mr. King

were raised in Petitioner’s first habeas petition, but dismissed because they had not first been raised

in state court. This court approved and adopted the Report and Recommendation of Magistrate

Judge Rapoport which stated that the claims could not be considered in this court since they had not

first been presented in state court. Petitioner did not, however, raise the claim of actual innocence

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based on Mr. King’s allegations in state court until he filed a second PCRA petition in April 2000, after

receipt of additional allegedly exculpatory information contained in the homicide binder provided to his

legal advocates in February 2000. Petitioner has not provided the court with any reason for the delay

in timely presenting his claims based on Mr. King’s allegations to the state court. Mr. King’s letter was

written in 1996, he testified at a parole board hearing in 1998, yet Petitioner did not present these

claims to the PCRA court until April 2000. Additionally, the Pennsylvania Superior Court found that

Petitioner’s claims regarding the other witness statements and evidence discovered in the homicide

binder obtained by Petitioner in February 2000 were also untimely because Petitioner did not present

them to the PCRA court within 60 days of discovery of the statements. Consequently, the claims are

procedurally defaulted and do not fall within the narrow class of cases implicating a fundamental

miscarriage of justice. 

Petitioner also claims that he is actually innocent of the crimes for which he was

convicted. However, as the Magistrate Judge correctly noted in the Report, neither the Supreme

Court of the United States, nor the Court of Appeals for the Third Circuit has recognized an “actual

innocence” exception to the statue of limitations. Report at 6. On the record before it, this court

declines to make such an exception at this time. Petitioner further objects to the report because it

was issued before he responded to the motion to dismiss and because the Magistrate Judge did not

have an opportunity to review the transcripts and exhibits Petitioner supplied after the Report was

filed. This court, however, is conducting a de novo review of the instant petition and has considered

both Petitioner’s response to the motion to dismiss as well as the transcripts and exhibits provided. 

However, a review of the transcripts, exhibits, and Petitioner’s response to the motion to dismiss do

not lead this court to a different conclusion; his claims are time barred. Finally, Petitioner objects to

the Report on several other grounds. All of the remaining objections are related to claims previously

raised in either Petitioner’s PCHA, PCRA or first habeas petition. The claims were dismissed and

cannot be addressed on the merits herein. Therefore, the court will approve the Report. 

Case 2:04-cv-00411-CG Document 24 Filed 09/26/05 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VINCENT JOHNSON, :

Petitioner :

 :

v. : No. 04-411 

:

DONALD KELCHER, et al., :

Respondents :

ORDER

AND NOW, this day of September 2005, after careful and independent

consideration of the petition for a writ of habeas corpus, Petitioner’s Objections and the response

thereto, the other documents in the record and after review of the Report and Recommendation of

Thomas J. Rueter, United States Magistrate Judge, IT IS HEREBY ORDERED that::

1. Petitioner’s Objections are OVERRULED;

2. The Report and Recommendation is APPROVED and ADOPTED;

3. The petition for a writ of habeas corpus is DISMISSED as time barred;

4. Petitioner’s Motion for Entry of Default (Doc. No. 14) is DENIED;

5. Petitioner’s Motion for Stay/Abeyance Pending Outcome of Petitioner’s PCRA

Petition of January 2004 (Doc. No. 19) is DENIED; and

6. A certificate of appealability is not granted.

BY THE COURT:

S/_________________________

Clifford Scott Green, S.J.

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