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Constitutional Claim of a Variance Rejected in Habeas Appeal

By FindLaw Staff on March 03, 2010 | Last updated on March 21, 2019

In Real v. Shannon, No. 07-4532, the Third Circuit faced a challenge to the district court's denial of defendant's petition for a writ of habeas corpus. 

As stated in the decision: "The information stated that B.B.'s rape occurred "on or about December 1996." "Where 'on or about' language is used, the government is not required to prove the exact dates, if a date reasonably near is established." U.S. v. Nersesian, 824 F.2d 1294 (2d Cir. 1987)

In affirming the district court's denial of the petition, the court held that the variance between the victim's testimony and the information did not violate defendant's due process rights.  The court stated that in charging that the 1996 rape took place "on or about December," the Commonwealth was necessarily charging that the rape could have occurred in November or January as well.  In addition, the court rejected defendant's ineffective assistance claim as well as his defective jury instruction claim.

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