Magistrate: Boring appeal not timely
Former Tyrone man seeks new trial in murder case
A federal magistrate in Pittsburgh has recommended that an appeal by a former Tyrone man serving life without parole for first-degree murder be dismissed because it was not filed on a timely basis.
The recommendation in the case involving Robert Charles Boring, 66, was handed down earlier this week by U.S. Magistrate Judge Lisa Pupo Lenihan.
Boring has 14 days to file objections to the magistrate’s opinion, and after that, it will go to U.S. District Judge Kim R. Gibson in Johnstown for approval or disapproval.
If the judge upholds Lenihan’s recommendation, it likely will mean the end of Boring’s long quest for a new trial in the stabbing death of 64-year-old Geraldine Gray whose body was found in her second-floor apartment on July 6, 1975.
Investigators initially interviewed Boring but did not have enough evidence to link him to the murder.
Boring wasn’t arrested for Gray’s murder for nearly 20 years — after police received information from two state prison inmates, Ronald Isenberg and Thomas Stewart, who related that Boring admitted to them he committed the murder.
He was in prison at the time serving a sentence for burglary.
Boring was convicted of murder in 1995 and is now incarcerated at the State Correctional Institution at Rockview in Centre County.
He has consistently maintained his innocence and has repeatedly filed appeals challenging his conviction.
At one point he asked Blair County Judge Timothy M. Sullivan for DNA tests on a knife found at the scene, but Sullivan pointed out that even if someone else’s DNA was found on the knife, it would not be indicative of Boring’s innocence.
The judge rejected DNA testing as being supported by only “guess, speculation and hope.”
Most recently, Boring challenged his life without parole sentence by contending the mandatory nature of the sentence under Pennsylvania law violated a 2013 ruling by the U.S. Supreme Court, Alleyne v. U.S., that made many of the Pennsylvania’s mandatory sentencing laws unconstitutional.
He also contended that the charges were improperly filed against him, noting his offenses were not approved by a grand jury.
Lenihan reviewed Boring’s case history, which included a direct appeal to his conviction and two post conviction petitions in which the defendant challenges his attorney’s handling of the case and attempts to present new developments in the law that could affect his conviction and sentence.
The federal magistrate pointed out that under the 1996 federal Antiterrorism and Effective Death Penalty Act, an inmate has a year from the time his sentence became final at the state level to request a review of his case by the federal court.
Lenihan determined Boring’s sentence became final on May 26, 1997.
The yearlong deadline is stayed if additional state appeals are filed, and Lenihan ruled that deadline was extended twice to accommodate his state petitions.
The magistrate judge, however, found that Boring’s state appeals ended June 2, 2011, and that the time period for him to file his federal petition actually expired on Jan. 3, 2012.
His federal petition was not filed until June 28, 2016.
Boring stated that while his appeal may be untimely on its face, he cited “newly discovered evidence” as an exception to the federal deadline.
That alleged new evidence stemmed from the fact he was not aware of the impact of the Alleyne decision on Pennsylvania cases until a Pennsylvania Supreme Court ruling of June 15, 2015, confirming Alleyne’s possible impact on murder cases.
Boring contended his learning of the new case created an exception to the one-year rule.
Lenihan rejected that contention, noting that learning about a Supreme Court ruling does not fall under the category of newly discovered evidence.
She also pointed out that Pennsylvania’s appeals courts found Boring’s second post-conviction petition citing newly discovered evidence to be untimely and, concluded, “this court is ‘bound’ by the state court’s finding the PCRA petition was untimely.”
The magistrate judge in addition dismissed Boring’s claim that his prosecution was faulty because he was not indicted by a grand jury.
She concluded Boring had no right to indictment by a grand jury because that rule does not apply to the states.
Pennsylvania, she explained, allows criminal proceedings to be initiated by the filing of criminal information.
“Therefore,” she ruled, “(Boring) had no right, constitutional or otherwise, to prosecution upon indictment by a grand jury.”