Judge recommends dismissal of appeal in rape case | News, Sports, Jobs

A federal magistrate judge presiding over the district court in Johnstown recommended dismissing as untimely an appeal filed by a former Clearfield County resident serving time for rape and related sex crimes.

The petition was filed by Kelly Donahue, 51, an inmate at the State Department of Corrections in Frackville.

Donahue filed a petition in federal court in Scranton in July challenging his conviction for a sexual assault that occurred 22 years ago.

A district judge in Scranton ordered the case transferred to federal court in Johnstown, which hears cases originating in Clearfield County.

The Donahue petition was handed over on October 16, just over two weeks ago.

On Monday, federal Magistrate Judge Keith A. Pesto recommended dismissing the Donahue petition as untimely.

Citing the Antiterrorism and Effective Death Penalty Act of 1996, Pesto ruled that Donahue’s federal plea of ​​innocence must be filed within one year of the close of his state case.

The state review of Donahue’s case ended in 2005.

Donahue continued to appeal his conviction by filing petitions under the Pennsylvania Post-Conviction Relief Act, but his last appeal at the state level ended in 2019, Pesto said.

The federal appeal wasn’t filed until July of this year, well beyond the one-year deadline.

In his opinion on Monday, Pesto reported that there are recognized exceptions to the one-year rule:

– Had Donahue been prevented from filing his petition by the state lawsuit.

– If a new rule has been recognized by the Supreme Court that can be applied to the case.

– If the petitioner pursues his rights “with reasonable diligence” and an extraordinary circumstance, such as serious misconduct by counsel, prevents him from submitting his petition in a timely manner.

In his most recent petition, Donahue claimed “actual innocence” of the charges against him.

He claimed that what happened between him and his victim in 2002 was consensual.

Donahue also complained in his federal petition that his trial attorneys were ineffective. He claimed that one was inexperienced in criminal law and the other had abandoned him.

He maintained that he did not commit any of the crimes charged against him and objected to the judge’s instructions to the jurors before considering the evidence.

Donahue protested that the judge, not the jury, found him to be a sexually violent predator with a lifetime registration requirement.

In his case, the judge sentenced Donahue to eight years and six months in prison on charges of rape, involuntary sexual intercourse, sexual assault, indecent assault and simple assault.

After being paroled in 2016, he once again faced charges of failing to register with the police and violating parole.

Pesto declared that Donahue’s claim of “actual innocence” was insufficient to meet the one-year filing requirement.

“It’s also incredible,” he explained.

“The basis for Donahue’s consent claim should have been known to him at the time of the crime (twenty years ago),” Pesto said, noting that it was not a new or recently discovered fact that would be applicable. to the cause.

The magistrate judge concluded that Donahue’s claim did not constitute a basis for exceeding the time limit for filing an appeal under the Anti-Terrorism and Effective Death Penalty Act.

It also recommended not issuing a writ of appeal in Donahue’s case that would have allowed him to seek review of the decision pending by the 3rd Circuit Court of Appeals in Philadelphia.

Donahue has 14 days to respond to the judge’s recommendation.