Opinion
Civil Action 21-1842
01-23-2023
MICHAEL GINYARD, Petitioner, v. ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; DISTRICT ATTORNEY OF ALLEGHENY COUNTY; and DAVID BOBBY, Respondents.
Re: ECF No. 10
Joy Flowers Conti, District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
It is respectfully recommended that Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus (“Motion to Dismiss”), ECF No. 10, be granted. It is further recommended that a certificate of appealability be denied.
II. REPORT
Michael Ginyard (“Petitioner”) is a federal prisoner proceeding pro se in this matter. He is currently being held at the Northeast Ohio Correctional Center (“NEOCC”) in Youngstown, Ohio.
Petitioner alleges that he is subject to a state detainer related to a conviction and sentence issued by the Court of Common Pleas of Allegheny County, Pennsylvania in 2011 in Commonwealth v. Ginyard, Docket No. CP-02-CR-23-2011. ECF No. 1 at 1.
As discussed in more detail below, Petitioner has been the subject of multiple criminal cases which are relevant to understanding the arguments that he makes in support of the Petition. However, lest we lose sight of the forest for the trees, it is important to remember Petitioner attacks only his state conviction and sentence at Docket No. CP-02-CR-23-2011 in the instant matter.
Currently before this Court is Respondents' Motion to Dismiss, in which they assert that Petitioner is not in custody pursuant to the state court sentence that he attacks. ECF No. 10 at 3. Respondents also assert that the Petition is barred by the applicable statute of limitations, and is procedurally defaulted. Id. Petitioner has responded in opposition, arguing that he still is subject to a state probation detainer, and that he is actually innocent of one of the offenses of which he was convicted in state court. ECF No. 13 at 3-5. Petitioner further asserts that the probation detainer will negatively affect his forthcoming federal sentence. ECF No. 1 at 6.
For the reasons that follow, it is unclear at this stage of this federal action whether Petitioner was “in custody” with respect to his state court conviction and sentence at the time of filing of the Petition. However, because it is clear that Petitioner's collateral attack on that state conviction and sentence is time-barred, federal habeas relief should be denied and the Motion to Dismiss should be granted.
A. Relevant Procedural History
On May 25,2011, Petitioner was convicted of possession with intent to deliver a controlled substance, in violation of 35 Pa. C.S.A § 780-113(a)(30); and possession of a controlled substance, in violation of 35 Pa. C.S.A. § 780-113(a)(16). ECF No. 10-1 at 3. See also Com, v. Ginyard, Docket No. CP-02-CR-23-2011. On August 23, 2011, Petitioner was sentenced to an aggregate term of 11 months, 15 days to 23 months' imprisonment, followed by three years' probation. Id. Petitioner's timely filed post-sentence motion was denied on September 22, 2011. Id. at 5. Petitioner did not file a direct appeal, and his conviction became final 30 days later on October 24, 2011. Pa. R.A.P. 903.
The 30 day calculation falls on a weekend. Therefore, in accordance with Pa. R.A.P. 903 and 1 Pa. C.S.A. § 1908, the effective calculation date is Monday October 24, 2011.
The parties agree that Petitioner was granted parole in April of 2012, and while on parole, was arrested on new state drug charges. ECF No. 10 at 1; ECF No. 13 at 6. On September 11, 2014, Petitioner's probation was revoked at Docket No. CP-02-CR-23-2011, and he was sentenced to a period of three years' probation to be served concurrently with another sentence of probation at Docket No. CP-02-CR-12648-2013. ECF No. 10-1 at 3, 6, and 16. Petitioner did not file an appeal from this new sentence, and thus the new sentence of probation became final 30 days later on October 14, 2014. Pa. R.A.P 903; 1 Pa. C.S.A. § 1908.
In the meantime, on October 10, 2017, Petitioner was indicted on six federal drug and firearms related charges in the United States District Court for the Western District of Pennsylvania. United States v. Ginyard, No. 17-CR-274 (W.D. Pa. Oct. 10, 2017), ECF No. 1. The prosecution filed a Request for Detention on November 10, 2017. No. 17-CR-274, ECF No. 12. Petitioner waived his right to a detention hearing, and was ordered detained. No. 17-CR-274, ECF No. 13. There is no indication on the record in the instant federal habeas proceeding, or his federal criminal proceeding, that Petitioner has been released from federal custody since that date, or has been in primary state custody since that date. No. 17-CR-274, ECF No. 83 (writ of habeas corpus ad prosequendum issued on October 13, 2017, with a handwritten note dated August 2, 2019 stating “This writ is returned unexecuted because local charges have been lifted.”).
On February 28, 2019, Petitioner entered a plea of guilty to Counts 1, 3, 4, and 5 of the federal indictment. No. 17-CR-274, ECF No. 65. Petitioner has not been sentenced, and has indicated his intention to withdraw his guilty plea. No. 17-CR-274, ECF No. 115. The federal criminal case is stayed pending a decision in another case which is currently before the United States Court of Appeals for the Third Circuit. No. 17-CR-274, ECF No. 174.
According to a single page from Petitioner's presentence investigation report issued on or about May 14, 2019 in No. 17-CR-274 - and which Petitioner filed on the public docket as an exhibit to his opposition to the pending Motion to Dismiss - Petitioner was arrested on state charges on February 27, 2017, and a probation violation petition was filed in Docket No. CP-02-CR-23-2011 on March 6, 2017. ECF No. 13 at 4; ECF No. 13-4 at 3. This excerpted page from the presentence investigation report further indicates that Petitioner's probation expired on September 11, 2017, but that as of the date of its filing, the Allegheny County Adult Probation Department maintained a detainer on Petitioner, and his case remained open, pending the resolution of his federal charges. Id. That said, the Gagnon I Probation Violation Report for Hearing Officer form, dated March 6,2017, and a Gagnon Hearing Officer Recommendation form, dated March 8, 2017, both of which were submitted as part of the physical state court record, indicate that Petitioner's probation violation charges would remain pending the resolution of state criminal charges. It should also be noted that Petitioner was not indicted on federal charges in No. 17-CR-274 until October 10, 2017 - seven months after his Gagnon I hearing on March 8, 2017.
Additionally in state court, on December 3, 2019 - more than five years after Petitioner was resentenced for his to probation, and more than two years after he was ordered detained on his federal charges - Petitioner filed a pro se petition for post-conviction relief pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541, et seq See ECF No. 10-1 at 7; see also PCRA Super. Ct. Op., ECF No. 10-1 at 45. Post-conviction relief was denied by the PCRA Trial Court on January 12, 2021. PCRA Super. Ct. Op., ECF No. 10-1 at 46. Petitioner timely-filed a notice of appeal to the Pennsylvania Superior Court, which affirmed the PCRA Trial Court's denial of relief on November 19, 2021. Id. at 44. The Superior Court held that Petitioner had completed his sentence of probation on September 11, 2017. Id. at 49. The Superior Court did not address the pending probation detainer in its opinion.
As part of the Service Order dated January 7, 2022, Respondents were ordered to provide with the response the state court record in Petitioner's underlying state criminal case, including but not limited to electronic copies of “all briefs, petitions . . . [and] . . . dispositive ordersf]” relating to Petitioner's PCRA petition, as well as hard copies of all transcripts in the state criminal case. ECF No. 3 at 3-4. Instead of complying with that order, Respondents failed to provide Petitioner's pro se PCRA Petition, the PCRA Trial Court's Rule 1925(a) opinion, or the transcript of a Gagnon I hearing which apparently took place on March 8, 2017. ECF No. 13 at 2. Because Petitioner's claims clearly are time-barred under the Antiterrorism and Effective Death Penalty Act - and thus the pending Motion can be disposed of on the available record - this Court should take no action against Respondents at this time for their failure to comply with the terms of the Service Order. However, counsel for Respondents are cautioned that failures to comply with orders of this Court in the future may result in the imposition of sanctions.
This Court received the instant federal habeas Petition on December 22, 2021; however, the signature block on the Petition indicates that it was signed on November 24, 2021. ECF No. 1 at 1 and 15. For the sake of argument, it is presumed that the Petition was placed in the prison mail system on the same day that it was signed. As such, the Petition is presumed to have an effective filing date of November 24, 2021.
In the Petition, Petitioner raised the following two claims for relief:
GROUND ONE: The evidence present in this case was insufficient to find me guilty beyond a reasonable doubt as to Count 1 [possession with intent to deliver a controlled substance;]
and
GROUND TWO: The conviction was obtained in violation of my Sixth Amendment right to proceed pro-se.Id. at 4 and 7.
On April 27,2022, Respondents filed their Motion to Dismiss, as permitted by Local Civil Rule 2254.E.1. ECF No. 10. Respondents argue that Petitioner is no longer in custody on his state court sentence and, as such, this Court thus lacks jurisdiction. Id. at 3. Further, Respondents argue that the Petition is barred by the applicable one-year statute of limitations. Id.
Petitioner filed his response in opposition on May 23,2022. ECF No. 13. In his opposition, Petitioner argues that he is in state custody as a result of an open probation detainer that is pending resolution of his federal charges, Id. at 4, and that his alleged actual innocence of one the counts of which he was convicted should overcome procedural bars. Id. at 5.
The Motion to Dismiss is ripe for consideration.
B. Petitioner's Custody Status is Unclear Based on the Record Before the Court.
Because Petitioner invokes the federal court's jurisdiction, he bears the burden to demonstrate that the 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 habeas petition, and if challenged, the 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 (1 Oth 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)). Accordingly, for this Court to have jurisdiction, Petitioner must have been in custody pursuant to his state court criminal judgment at Docket No. CP-02-CR-23-2011 on November 24, 2021 (the effective filing date of the instant habeas Petition).
Courts have held that even detention on a parole warrant constitutes “custody” for the purposes of habeas relief. See Federal Habeas Manual § 1:10 (citing cases); but see Mars v. Mounts, 895 F.2d 1348, 1351 n.l (11th Cir. 1990) (“Because Mars was not in custody pursuant to a state court order, the district court accepted jurisdiction under 28 U.S.C. § 2241(c)(3) which provides that “[t]he writ of habeas corpus shall not extend to a prisoner unless.... [h]e is in custody in violation of the Constitution or laws or treaties of the United States....” 28 U.S.C. § 2241(c)(3) (West 1971)”).
Here, Petitioner has established that he was subject to a probation detainer at least as late as May 14, 2019. Additionally, the docket in CP-02-CR-23-2011 indicates - if not conclusively one way or another - that that the detainer may have been issued under the authority of the Court of Common Pleas stemming from Petitioner's criminal conviction. ECF No. 10-1 at 6 (referencing Petitioner's Gagnon I proceedings). Respondents have provided no evidence for or against the proposition that this detainer might have been lifted. Thus, it is unclear when and whether Petitioner was “in custody” for the purposes of Section 2254(a).
To the extent that Petitioner might argue that he is “in custody” based on a reasonable apprehension that he will face future confinement as a result of the probation detainer, the situation is even less clear. While the Pennsylvania Superior Court recognized that Petitioner's sentence of, probation has been exhausted, see PCRA Super. Ct. Op., ECF No. 10-1 at 49, Pennsylvania law explicitly allows a trial court to extend or increase conditions of probation for a crime that was committed while Petitioner was on probation. 42 Pa. C.S.A. § 9771. See also Com, v. Foster, 214 A.3d 1240, 1249-50 (Pa. 2019). Pennsylvania law further requires that revocation of probation must occur within a reasonable period of time after the expiration of the probationary period has ended. See, e.g., Com, v. Wright, 116 A.3d 133, 137-39 (Pa. Super. 2015). The record before this Court does nothing to clarify what sort of custody - if any - Petitioner might or might not face when the state courts finally resolve his probation detainer.
Simply put, Respondents' poor briefing and failure to comply with the Service Order of January 7, 2022, ECF No. 3, have effectively stymied this Court from resolving the issue of jurisdiction at this time. Be that as it may, it is clear that the grounds for relief raised by Petitioner are time-barred, and the Petition must be dismissed on that basis. See Johnson v. Rickard, No. 161250, 2020 WL 6874406, at *6 (W.D. Pa. Nov. 23, 2020), certificate of appealability granted sub norm Johnson v. Warden McDowell FCI, No. 20-3595,2021 WL 6145620 (3d Cir. Apr. 19,2021), and affd, 2022 WL 458384 (3d Cir. Feb. 15, 2022).
C. The AEDPA Statute of Limitations
The first consideration in reviewing a federal habeas corpus petition is 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 post-conviction 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 Nara v, Frank, No 99-5, 2004 WL 825858, at *3 (W.D. Pa., Mar. 10, 2004)).
1. Trigger date for the Petitioner's grounds is October 24, 2011.
Petitioner's ground for relief are restated as follows:
GROUND ONE: The evidence present in this case was insufficient to find me guilty beyond a reasonable doubt as to Count 1 [possession with intent to deliver a controlled substance;]
and
GROUND TWO: The conviction was obtained in violation of my Sixth Amendment right to proceed pro-se.ECF No. 1 at 4 and 7.
Both Ground One and Ground Two attack alleged errors with Petitioner's state criminal trial which would have been apparent on the date of conviction. Accordingly Grounds One and Ground Two have the same trigger date. The trigger date is October 24, 2011 - the date on which Petitioner's state conviction became final.
2. Grounds One and Two are time-barred.
The calculation of the statute of limitations under Section 2244(d)(1) and (2) for Petitioner's asserted Grounds One and Two is as follows.
As stated above, the trigger date for Grounds One and Two is October 24, 2011. The clock on the AEDPA's one-year statute of limitations began running on that date, and continued until November 24, 2021 - the date on which the Petition is deemed filed. This was a period of over ten years (3684 days) - far longer than the AEDPA's one-year statute of limitations. Instead, to be timely, the Grounds One and Two of the Petition would have to have been filed on or before October 24, 2012.
Even if Grounds One and Two had a trigger date of October 14, 2014 - the date on which Petitioner's resentencing was final - the Petition still would have to have been filed on or before October 14, 2015 in order to have been timely. See ECF No. 10-1 at 6; Pa. R.A.P. 903; 28 U.S.C. § 2244(d).
Nor is the time of the pendency of the PCRA petition excluded from the statute of limitations calculations pursuant to 28 U.S.C. § 2244(d)(2), because the PCRA petition was untimely, and thus not “properly filed” under the state statute. 42 Pa. C.S.A. § 9545(b). However, even if it had been, it would subtract only the period of time from the filing of the pro se PCRA petition on December 3, 2019, to 30 days after the Superior Court affirmed its dismissal on November 19, 2021. This would subtract only 757 days, leaving a total of 2927 days. Accordingly, Petitioner's asserted grounds for relief are untimely based on the one-year limitations period set forth in Section 2244(d)(1).
3. Petitioner has not demonstrated actual innocence.
In his opposition brief, Petitioner argues that it would be a miscarriage of justice to deny his Petition, as he is actually innocent of one of the counts of which he was convicted. ECF No. 13 at 4-5; see also ECF No. 1 at 14. He cites to the transcript of a hearing in his criminal case that took place on May 25, 2011. ECF No. 13 at 4; ECF No. 13-5 at 1-10.
Petitioner makes this argument in the context of excusing procedural default. ECF No. 13 at 10. However, this Court recommends dismissal based on the statute of limitations - not procedural default. Accordingly, Petitioner's argument of actual innocence will be applied to whether the statute of limitations should be tolled.
In McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013), the United States Supreme Court recognized that the AEDPA's time-bar could be overcome by a Petitioner's showing of actual innocence. In order to do so, Petitioner must meet the requirements set forth in Schlup v. Delo, 513 U.S. 298 (1995), as such, Petitioner must demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 321 (quoting Murray v Carrier, 477 U.S. 478,496 (1986)). Under this standard, Petitioner must “support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S at 324. Once such evidence is presented, Petitioner must show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 327.
In this case, Petitioner has adduced no new evidence of his actual innocence, nor do his arguments lead to the conclusion that “it is more likely than not that no reasonable juror” would have convicted him. By their very nature, arguments raised before the trial court at a hearing in 2011 are not “new.” To the extent that they provide a basis for habeas relief, they are just as time-barred as Grounds One and Two. Further, the timing of his assertion of actual innocence does not support the reliability of his argument. McQuiggin, 569 U.S. at 386. As such, Petitioner has not established that he should be allowed to avoid the consequences of his failure to comply with the AEDPA's strict statute of limitations.
D. Certificate of Appealability
Finally, a certificate of appealability should be denied because jurists of reason would not find it debatable whether Petitioner's Grounds One and Two were 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, respectfully recommended that Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus, ECF No. 10, be granted. 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.