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Judge recommends appeal in rape case be dismissed

A federal magistrate judge presiding in the district court in Johnstown has recommended that an appeal filed by a former Clearfield County resident serving prison time for rape and related sexual offenses be dismissed as untimely.

The petition was filed by Kelly Donahue, 51, who is an inmate in the State Correctional Institution in Frackville.

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

A district judge in Scranton ordered the case be transferred to the federal court in Johnstown, which is the venue for cases that originate in Clearfield County.

The Donahue petition was transferred on Oct. 16, just a little over two weeks ago.

On Monday, federal Magistrate Judge Keith A. Pesto recommended the Donahue petition be dismissed because it was untimely.

Citing the Antiterrorism and Effective Death Penalty Act of 1996, Pesto ruled that Donahue’s federal claim of innocence should have been filed within one year following the close of his case at the state level.

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

According to Pesto’s opinion, Donahue continued to challenge his conviction by filing petitions under the Pennsylvania Post Conviction Relief Act, but his last challenge at the state level ended in 2019.

His federal appeal was not filed until July of this year, well beyond the one-year time limit.

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

– If Donahue had been prevented from filing his petition by state action.

– If there has been a new rule recognized by the Supreme Court applicable to the case.

– If the petitioner has been pursuing his rights “with reasonable diligence” and an extraordinary circumstance such as serious attorney misconduct interfered with his timely filing of his petition.

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

He contended whatever occurred between him and his victim in 2002 was consensual.

In his federal petition, Donahue also complained his trial attorneys were ineffective. One was inexperienced in criminal law and the other abandoned him, he argued.

He maintained that he did not commit any of the offenses lodged against him, and he contested the instructions given by the judge to jurors prior to their deliberating the evidence.

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

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

After being paroled in 2016, he once again faced charges that included failing to register with police and parole violation.

Pesto in his opinion explained that Donahue’s claim of “actual innocence” is inadequate to meet the one-year filing requirement.

“Additionally, it is unbelievable,” he explained.

“The basis for Donahue’s claim of consent would have had to have been known to him at the time of the offense, (two decades ago),” Pesto stated, as he noted it is not a new or recently discovered fact that would be applicable to the case.

The magistrate judge concluded Donahue’s claim does not establish a basis to overcome the time limit for filing an appeal under the Antiterrorism and Effective Death Penalty Act.

He also recommended that a certificate of appealability not be granted in Donahue’s case, which would allow him to request review of the pending decision by the 3rd Circuit Court of Appeals in Philadelphia.

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

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