United States District Court, D. New Jersey
BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE.
this Court is the petition for a writ of habeas corpus of
Raymond Franklin Peake, III, (“Petitioner”)
brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On
January 26, 2017, this Court, pursuant to Rule 4 of the Rules
Governing Section 2254 Cases, entered an order directing
Petitioner to show cause why his petition should not be
dismissed with prejudice as time barred. (ECF No 4.) On March
8, 2017, Petitioner filed a response to that order. (ECF No.
5.) On April 224, 2017, Petitioner filed a motion requesting
that the Court take judicial notice of an alleged
Brady violation and permit Petitioner to engage in
discovery. (ECF No. 6.) For the reasons set forth below,
Petitioner's petition is DISMISSED WITH
PREJUDICE as time barred, Petitioner is
DENIED a certificate of appealability
(“COA”), and Petitioner's motion for judicial
notice and permission to engage in discovery is
Superior Court of Pennsylvania summarized the procedural
history of this matter in its opinion affirming the dismissal
of Petitioner's second Post Conviction Relief Act (PCRA)
petition as time barred:
On August 16, 2012, [Petitioner] entered a negotiated plea of
nolo contendere to second-degree murder and theft by
unlawful taking related to the shooting death of Todd Getgen
at a rifle range in Cumberland County. Pursuant to the plea
negotiations, the trial court sentenced [Petitioner] to life
imprisonment without the possibility of parole. [Petitioner]
did not file a direct appeal. His judgment of sentence
therefore became final on September 15, 2012. 42 Pa.C.S.
§ 9545(b)(3) [a conviction becomes final for PCRA
purposes at the conclusion of direct review or the expiration
of the time for seeking such review].
[Petitioner] timely filed his first PCRA Petition on August
19, 2013, raising several claims of ineffective assistance of
counsel. The PCRA court denied the Petition as meritless on
January 27, 2014, and this Court affirmed the denial on June
24, 2014[, in] Commonwealth v. [Peake], No.
2198 MDA 2013 (Pa. Super[.] June 24, 2014) (unpublished
memorandum). [Petitioner] did not file a Petition for
Allowance of Appeal in the Pennsylvania Supreme Court.
[Petitioner] filed the instant PCRA Petition on July 6, 2015.
The PCRA court dismissed this second Petition as untimely on
August 12, 2015.
Commonwealth v. Peake, No. 1581 MDA 2015, 2016 WL
2611039, at *1 (Pa. Super. May 5), petition for appeal
denied, 2016 WL 6605097 (Pa. Nov. 8, 2016); (see
also ECF No. 1 at 1-9). Following the dismissal of his
second PCRA petition as time barred, Petitioner filed an
appeal with the Superior Court of Pennsylvania, which
affirmed the dismissal. Peake, 2016 WL 2611039 at
*1. Petitioner then filed a petition for allowance of appeal
with the Pennsylvania Supreme Court, which was denied on
November 8, 2016. Peake, 2016 WL 6606097 at *1. On
or about January 7, 2017, Petitioner filed his current habeas
petition. (ECF No. 1 at 16-17.)
about April 18, 2017, Petitioner filed in this Court a motion
requesting that the Court take judicial notice of an alleged
Brady violation and permit him to engage in
discovery. (ECF No. 6.) In his motion, Petitioner contends he
was subjected to a polygraph at his own request prior to his
nolo contendere plea in his criminal case.
(Id. at 2-3.) Petitioner contends the polygraph
showed he was truthful when he denied committing the murder,
but that the police who conducted the test told him
“[I]t does not matter[;] we still have the [murder]
weapon to be tested.” (Id. at 3.) Petitioner
contends the District Attorney in his criminal case acted
improperly in charging him based on his possession of the
murder weapon and various other forms of evidence, because
the polygraph suggested he did not commit the murder.
motion, Plaintiff argues the “result” of his
polygraph test was not turned over to him prior to his plea,
and he therefore was denied exculpatory evidence, despite
apparently having been told of the result at the time of the
test by the investigating officers. (Id.; ECF No.
6-1.) He states he has sought the results of his polygraph
test but has been unable to discover any such document.
belief that such a document exists appears to come from a
letter he sent to the Cumberland County Clerk of Court
requesting documents from his criminal case some time prior
to October 17, 2016. (See ECF No. 6-2 at 1.), .
(Id.) In that letter, the Clerk of Court for
Cumberland County, Pennsylvania sent Petitioner copies of his
plea colloquy and rights form, but responded to
Petitioner's other requests as follows: “However,
per your request we do have the following items in your
Criminal Case file[: a] copy of your confession, results of a
polygraph, a ballistic test, or a copy of a FBI
report.” (Id.) When Petitioner requested these
other documents again, the Clerk informed Petitioner there
had been a typo in the first letter. (Id. at 2-3.)
The Clerk informed Petitioner the first letter should have
indicated the Clerk did “NOT
have such items.” (Id.) Petitioner appears to
argue the first letter's typo amounts to newly discovered
evidence of a report that was not turned over to him, which
he believes constitutes a Brady violation.
(Id. at 1-3.) However, this point is contradicted by
the second letter. (Id. at 3.)
28 U.S.C. § 2254(a), the district court “shall
entertain an application for a writ of habeas corpus [o]n
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” A habeas petitioner has the burden of
establishing his entitlement to relief for each claim
presented in his petition based upon the record that was
before the state court. See Eley v. Erickson, 712
F.3d 837, 846 (3d Cir. 2013); see also Parker v.
Matthews, ___ U.S. ___, ___, 132 S.Ct. 2148, 2151
(2012). Under the statute, as amended by the Anti-Terrorism
and Effective Death Penalty Act, 28 U.S.C. § 2244
(“AEDPA”), district courts are required to give
great deference to the determinations of the state trial and
appellate courts. See Renico v. Lett, 559 U.S. 766,
claim has been adjudicated on the merits by the state courts,
the district court shall not grant an application for a writ