Opinion
Civil Action 22-1026
08-23-2023
LEELAND BARNHART, JR, Petitioner, v. COMMONWEALTH OF PA; ATTORNEY GENERAL OF PENNSYLVANIA Mr. Barker-, DISTRICT ATTORNEY OF GREENE COUNTY; and COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, Respondents.
District Judge Christy Criswell Wiegand
REPORT AND RECOMMENDATION
Re: ECF Nos. 3 and 11
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that Respondents' Motion to Dismiss for Lack of Timely Filing (“Motion to Dismiss”), ECF No. 11, be granted, and that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 3, be dismissed as untimely. It is further recommended that a certificate of appealability be denied.
II. REPORT
Leeland Barnhart, Jr. (“Petitioner”) is a former state prisoner proceeding pro se in this action. On May 25, 2012, Petitioner was convicted of a multitude of crimes in the Court of Common Pleas of Greene County in Commonwealth v. Barnhart, Docket Nos. CP-30-CR-485-2011 and CP-30-CR-487-2011 - including, but not limited to, 17 counts of involuntary deviate sexual intercourse with a person less than 16 years of age, in violation of 18 Pa. C.S.A. § 3123(a)(7). ECF No. 3 at 1. See also Docket, Com, v. Barnhart, No. CP-30-CR-485-2011 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-30-CR- 0000485-201 l&dnh=keFcvD7j2SboKgKuDFFzwQ%3D%3D (last visited June 20, 2023)). See also Docket, Com, v. Barnhart, No. CP-30-CR-485-2011 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet7docket NumberAlP-30-CR-0000487-201 l&dnh=YwV7GduwmBb6KZ0jXp4XyA%3D%3D (last visited June 20, 2023)).
It is undisputed that Petitioner no longer is imprisoned. However, as the result of his convictions, Petitioner currently is subject to an obligation to register as a sex offender, and to periodically report to the state police for the rest of his life. ECF No. 14 at 5 and 8; ECF No. 3 at 38; ECF No. 3-2 at 3.
A. Factual Background and Procedural History
The facts surrounding Petitioners' crimes, as adopted by the Pennsylvania Superior Court on direct appeal, are as follows.
The charges against Defendant arose out of events in the summer of 2011. On July 25, 2011, the victim, R.B. (d/o/b 10/[-]/95) left the family home in Carmichaels and moved in with Defendant (d/o/b 5/[-/]1976). Her parents did not know where she was and asked her friend K. if she knew her whereabouts. K. said she thought R.B. might be at “Lee's house”. R.B.'s father went to Defendant's mobile home and asked if he knew where his daughter was. Defendant said she was not there. R.B.'s father told Defendant that R.B. was only 15. R.B.'s parents made fliers and posted them around the neighborhood. They informed the police, the district attorney and Greene County Children and Youth Services (CYS). At some point, the parents got a phone call from a runaway hotline informing them that R.B. had called and asked the hotline to tell her parents she was safe and in good health. After about nine days, CYS located R.B. at Defendant's home. More precisely, a caseworker knocked on Defendant's door and talked to him. After about 45 minutes of conversation, Defendant admitted that R.B. was in the place and brought her out. The caseworker informed the police that R.B. had been found and then took her home to her parents.
After police and CYS personnel interviewed R.B., Defendant was charged with [IDSI], Sexual Assault, Aggravated Indecent Assault, and other sexual offenses. Of great significance in this case is the fact that at the time of these events [,] R.B. was 15 years old. She
would not be 16 until the following October. At a separate number, Defendant was charged with Concealing the Whereabouts of a Child, Interfering with the Custody of a Child and related offenses. The two numbers were joined for trial.Com. v. Barnhart, No. 417 WDA 2013, 2015 WL 7356193, at *1 (Pa. Super. Mar. 17, 2015).
Petitioner initially was sentenced to an aggregate term of imprisonment of 10 i to 21 years on May 25,2012. Id. at *13-14. His sentence was reversed on March 17,2015 by the Pennsylvania Superior Court on direct appeal as violative of Alleyne v. United States, 570 U.S. 99 (2013). Barnhart, 2015 WL 7356193, at *8. ECF No. 3 at 1.
Petitioner sought leave from the Pennsylvania Supreme Court to appeal from the Superior Court's denial of his other grounds for relief. Allocatur was denied on October 7, 2015. Com, v. Barnhart 125 A.3d 1197 (Pa. 2015). The record does not indicate that Petitioner sought a writ of certiorari from the United States Supreme Court.
On April 22, 2016, Petitioner was resentenced by the trial court to an aggregate term of incarceration of 5 to 10 years. See also Docket, No. CP-30-CR-485-2011 and Docket, No. CP-30-CR-487-2011. The new sentence was affirmed by the Superior Court on December 13, 2017. Com. V. Barnhart, 774 WDA 2016, 2017 WL 6348144, at *1 (Pa. Super. Ct. Dec. 13, 2017). Petitioner sought allocatur from the Pennsylvania Supreme Court, but his petition was denied on November 15, 2018. Com, v. Barnhart, 197 A.3d 225, 226 (Pa. 2018). Once again, the record does not indicate that Petitioner filed a petition for writ of certiorari with the United States Supreme Court. As such, Petitioner's conviction became final 90 days later, on February 13,2019. See U.S. Sup. Ct. R. 13; see also Jenkins v. Sup't of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013) (“On direct review, the Pennsylvania Supreme Court denied Jenkins's petition for allowance of appeal on September 28, 2007.. . . Because Jenkins had ninety days to petition for certiorari to the United States Supreme Court, his conviction became final on December 27, 2007.”).
During the interim, on July 19, 2017, the Pennsylvania Supreme Court decided Commonwealth V, Muniz, in which it held that retroactive application of Pennsylvania Sex Offender Registration and Notification Act's (“SORNA”) registration requirements violated the ex post facto clause of the Constitution of the United States. 164 A.3d 1189,1218 (Pa. 2017), abrogated on other grounds, Com, v. Santana, 266 A.3d 528 (Pa. 2021). Petitioner relies on this case to support one of his grounds for relief. ECF No. 3 at 38.
On November 15, 2019 - 275 days after his conviction became final - Petitioner filed a petition for post-conviction relief pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. Docket, No. CP-30-CR-487-2011; see also ECF No. 3 at 72. The PCRA trial court denied relief on August 17, 2021, based on its conclusion that Petitioner no longer was in custody. Docket, No. CP-30-CR-487-2011. Petitioner did not file an appeal, and the period to do so expired 30 days later, on September 16, 2021. Pa. R.A.P. 903. Respondents concede that the instant Petition was constructively filed on July 13,2022 - 300 days after Petitioner's right to appeal the denial of his PCRA petition lapsed. ECF No. 11 at 3.
On September 7, 2022, Respondents filed their Motion to Dismiss. ECF No. 11. Petitioner responded in opposition on October 12, 2022. ECF No. 13. The Motion to Dismiss is ripe for disposition.
After the undersigned determined that the Commissioner of the Pennsylvania State Police was a proper custodian of Petitioner, see ECF No. 17, that Respondent was served the Petition, and explicitly joined the instant motion to dismiss. ECF No. 23 at 2.
B. Legal Analysis
1. The custody requirement
Because Petitioner invokes the federal court's jurisdiction, he bears the burden to demonstrate that this case is within this Court's jurisdiction. In other words, Petitioner must affirmatively allege that he was “in custody” at the time of filing his federal habeas petition, and if challenged, Petitioner has the burden of persuading the court by a preponderance of the evidence that the Court has jurisdiction. See United States, v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). See also Brown V. Wenerowicz, No 13-1340, 2013 WL 2404152, at *4 (W.D. Pa. May 31, 2013).
“A federal court has jurisdiction to hear a habeas petition only if the petitioner was ‘in custody pursuant to the judgment of a State court' when the petition was filed.” Piasecki v. Court of Common Pleas, 917 F.3d 161, 165-66 (3d Cir. 2019) (quoting 28 U.S.C. § 2254(a)). For there to be jurisdiction, the petitioner must be “‘in custody' that arises ‘pursuant to the judgment of a state court' that is under attack.” Id. at 166. “Thus, custody is the passport to federal habeas corpus jurisdiction.” United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557, 560 (3d Cir. 1971). The United States Court of Appeals for the Third Circuit has explained that “[i]n making a custody determination, a court looks to the date that the habeas petition was filed. Barry v. Bergen Cnty. Prob. Dep't, 128 F.3d 152, 159 (3d Cir. 1997). See also Federal Habeas Manual § 1:4 (“In order to satisfy the custody requirement, the petitioner must be in custody at the time the petition is filed in federal court.”) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
While not raised in the instant Motion to Dismiss, Respondents assert that Petitioner is not in custody because he no longer is imprisoned or on probation or parole. ECF No. 14 at 1-2. Respondents acknowledge that the Third Circuit has held that prior sex offender registration requirements in Pennsylvania satisfied the custody requirement, Id. at 3-5 (citing, inter alia, Piasecki, 917 F.3d at 165-66), but argue that the current reporting requirements are less onerous, and the conditions under which Petitioner is required to report do not qualify as custody, Id. at 5-9.
Respondents' position has been rejected by at least one other judge within this district. Ackerman v. Pennsylvania, No. 21-91, 2022 WL 4082446, at *1-2 (W.D. Pa. Sept. 6, 2022). The briefing in that case appears to have lacked the specifics asserted by Respondents in the present matter. Compare Id. at *2 (“Ackerman provides no information as to the specifics of his registration requirements”) with ECF No. 14 at 4-8 (comparing Pennsylvania's current registration requirements with those in force in Piasecki). Nonetheless, the reasoning in Ackerman remains persuasive in the face of the Third Circuit's controlling precedent articulated in Piasecki. Accordingly, the undersigned concludes that Petitioner is in custody for the purposes of Section 2254(a), and that this Court has jurisdiction.
2. The AEDPA statute of limitations.
Next, the Court must determine whether the Petition was timely filed within the applicable statute of limitations. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, which established, generally, a strict one-year statute of limitations for the filing habeas petitions pursuant to Section 2254. The applicable portion of the statute is as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
The United States Court of Appeals for the Third Circuit has held that the statute of limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004), cert, denied sub nom. Fielder v. Lavan, 543 U.S. 1067 (2005). Thus, in analyzing whether a petition for writ habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry.
First, the court must determine the “trigger” date for the individual claims raised in the petition. Typically, this is the date that the petitioner's direct review concluded and the judgment became “final” for purposes of triggering the one-year period under § 2244(d)(1)(A).
Second, the court must determine whether any “properly filed” applications for postconviction or collateral relief were pending during the limitations period that would toll the statute pursuant to § 2244(d)(2).
Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. See, e.g., Munchinski v. Wilson, 807 F.Supp.2d 242, 263 (W.D. Pa. 2011), affd, 694 F.3d 308 (3d Cir. 2012) (citing Narav. Frank, No. 99-5, 2004 WL 825858, at *3 (W.D. Pa., Mar. 10, 2004)).
In Holland v. Florida, 560 U.S. 631 (2010), the United States Supreme Court affirmed the availability of equitable tolling of the AEDPA's one year statute of limitations under appropriate circumstances. In its opinion, the Supreme Court underscored that the one year statute of limitations in the AEDPA was not jurisdictional, and “does not set forth ‘an inflexible rule requiring dismissal whenever' its ‘clock has run.'” Id. at 645 (quoting Dav v. McDonough, 547 U.S. 198, 208 (2006)). Given that habeas corpus is, at its heart, an equitable form of relief, and with no well-defined congressional intent to the contrary, the Supreme Court concluded that it is proper, under the principles of equity, to toll the statutory one year period for filing a petition under Section 2254 in certain cases. Holland, 560 U.S. at 646-47.
In order for a delay in filing a habeas petition to qualify for equitable tolling, a petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” IcL at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Mere excusable neglect is not sufficient.” Miller v. New Jersey State Dep't of Corrs., 145 F.3d 616, 619 (3d Cir. 1998). Additionally, “[i]n noncapital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the ‘extraordinary' circumstances required for equitable tolling.” See Fahy v. Hom, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
While Holland did not involve an appeal from a decision of a district court within the Third Circuit, it did affirm the practice of courts within this circuit of granting equitable tolling in cases where the above-mentioned conditions have been met. See, e.g., LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005). Importantly, in LaCava, the Third Circuit emphasized that “[e]quitable tolling is appropriate when ‘the principles of equity would make the rigid application of a limitation period unfair[.]'” Id. at 275 (quoting Miller, 145 F.3d at 618). Additionally, it should be applied only where it is “demanded by sound legal principles as well as the interests of justice.”
Id. at 275 (internal quotes and citations omitted).
Here, Petitioner asserts the following grounds for relief in the Petition.
Ground One: “Lack of subject matter jurisdiction / Power of the Commonwealth (A.D.A) / Court / jury, prior to 25 July 2011, at both 485/487[.]” ECF No. 3 at 12.
Ground Two: “Verdict slip at 487 that was submitted to the jury was in error; did not reflect the amended dates.” Id. at 14.
Ground Three: “Trial Court erred to give a specific jury instruction reguarding [sic] the Commonwealth[']s ability or inability to prove the dates on which the crime took place.” Id. at 15.
Ground Four: “Ineffective assistance of defense counsel[.]” Id. at 17.
Ground Five: “Prosecutorial misconduct; perjury; Brady violation[.]” IT at 19. According to the Petition, the asserted Brady violation is the prosecution's alleged acknowledgement during Petitioner's resentencing that it did not have sufficient evidence to prove the sexual assault charges arising before July 25, 2011 asserted in the initial information. Id. It is noteworthy that the amended information in Petitioner's criminal trial did not assert charges for crimes occurring before July 25, 2011. Barnhart, 2015 WL 7356193, at *11.
Ground Six: “Hon. Judge Dayitch committed ‘judicial misconduct,' and abuse of discretion; color of law violations; ‘jurisdictional violations;' violated constitutional rights of Petitioner; with knowledge, while acting in office; failed to provide relief and delay of process on at least (3) separate occasions; (re-sentencing - on appeal - P.C.R.A.)” ECF No. 3 at 34.
Ground Seven: “The sexual offender registration requirements as applied to [Petitioner] are ‘unconstitutional,' contrary to statute and contrary to rules applied thereto.” Id. at 38.
To the extent that any of the above grounds are cognizable in a federal habeas action, they each arose either at trial, resentencing, or on direct appeal. The purported Brady violation asserted at Ground Five was known to Petitioner at least as early as his resentencing, and the issue underlying that ground - the amendment of the Information to exclude charges arising before July 25, 2011 - was asserted as Issue I on Petitioner's first direct appeal. It was denied on the merits by the Superior Court. Barnhart, 2015 WL 7356193, at *2-4.
With respect to Ground Six, any allegedly unconstitutional act by Judge Dayitch arising during Petitioner's PCRA proceedings is not cognizable in a federal habeas petition. Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“The federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation .... Federal habeas power is ‘limited ... to a determination of whether there has been an improper detention by virtue of the state court judgment.'”); Lambert v. Blackwell, 387 F.3d 210,247 (3d Cir. 2004) (“alleged errors in collateral proceedings ... are not a proper basis for habeas relief from the original conviction.”).
With respect to Ground Seven, to the extent that Petitioner asserts errors of state law or rules, these are not cognizable in a federal habeas proceeding. 28 U.S.C. § 2254(a) (federal habeas relief is limited to violations of the “Constitution or laws or treaties of the United States.”).
Accordingly, each cognizable ground has a trigger date of February 13, 2019, the date on which Petitioner's convictions became final.
Petitioner waited until November 15,2019 (275 days) to file his PCRA petition. The period to appeal to the Superior Court after its dismissal lapsed on September 16, 2021. But Petitioner waited until July 13, 2022 (another 300 days) to file the instant federal habeas Petition. This is a total of 575 non-excludable days - far more than the year allowed by the statute. In order for the Petition to have been timely, it would have had to have been filed on or before December 15,2021. Because the Petition was not deemed filed until July 13, 2022, it is untimely.
In his reply, Petitioner argues that the clock should be tolled due to “judicial misconduct / COVID[.]” ECF No. 13 at 25. His argument ignores the fact that none of the time prior to his conviction becoming final, or while his PCRA petition was pending, counts against him.
In addition, nowhere in the Petition or his other filings does Petitioner demonstrate the diligence necessary to assert equitable tolling.
The Petition should be dismissed as untimely.
C. Certificate of Appealability.
A certificate of appealability should be denied because jurists of reason would not find it debatable whether the Petition was barred by the AEDPA's one-year statute of limitations. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Respondents' Motion to Dismiss for Lack of Timely Filing, ECF No. 11, be granted, and the Petition, ECF No. 3, be dismissed as untimely. It is further recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.