Opinion
Civil Action 21-896
01-21-2022
LAWRENCE J. MADISON Petitioner, v. MICHAEL CLARK, SCI-Albion Superintendent; THE ATTORNEY GENERAL OF PENNSYLVANIA; and DISTRICT ATTORNEY OF WASHINGTON COUNTY, Respondents.
Arthur J. Schwab District Judge
REPORT AND RECOMMENDATION RE: ECF NO. 14
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that Ground One of Petitioner's Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Amended Petition”), ECF No. 5, be dismissed sua sponte pursuant to Rule 4 of the Rules Governing Section 2254 Cases. It is further recommended that Respondents' Motion to Dismiss Habeas Corpus Petition (“Motion to Dismiss”), ECF No. 14, be denied as moot as to Ground One, and granted as to Grounds Two and Three, and that the Amended Petition be dismissed with prejudice. It is also recommended that a certificate of appealability be denied.
II. REPORT
Lawrence J. Madison (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Albion (“SCI-Albion”) in Albion, Pennsylvania. He is proceeding pro se in this matter. In the Amended Petition, Petitioner seeks federal habeas relief from his 2016 conviction in the Court of Common Pleas of Washington County, Pennsylvania, for firearms
1 violations and receiving stolen property, at Case No. CP-63-CR-000495-2016. ECF No. 5 at 1; ECF No. 14-1 at 39-40.
A. Relevant Procedural History
Petitioner pleaded guilty to the above-referenced crimes on December 16, 2016. ECF No. 14-1 at 39-40. He was sentenced to an aggregate term of five to ten years on the same date. ECF No. 5 at 1; ECF No. 14-1 at 39-40 and 42. Shortly thereafter, Petitioner filed a postsentence motion to withdraw his guilty plea. After a hearing on March 21, 2017, ECF No. 5 at 2; ECF No. 17-1 at 38 and 43, that motion was denied by the trial court in an order ostensibly dated April 28, 2017. ECF No. 14-1 at 7 and 11. The “filed” stamp on the original document is marked “2017 APR 28 PM 4:04[.]” See Mem. and Order dated Apr. 28, 2017, at 1. However, the state court docket indicates that that order was not filed until May 5, 2017, ECF No. 14-1 at 43, and the trial court at one point indicates that it was not stamped until May 8, 2017. Id. 153. Out of an abundance of caution, for the purposes of the present motion, this Court will presume, without deciding, that the order denying post-sentence relief was issued on May 8, 2017.
Whether this order was issued on April 28, May 5, or May 8, 2017 ultimately is not dispositive of the instant Motion to Dismiss.
The record does not indicate that Petitioner filed a direct appeal from the trial court's postsentence order. As a result, Petitioner's conviction became final 30 days later - June 7, 2017. See Pa. R.A.P. 903. See also Ellis v. Ricci, No. CIV. 09-5124, 2010 WL 1741593, at *1 (D.N.J. Apr. 28, 2010) (“In cases where the defendant does not pursue a timely direct appeal, the sentence becomes final, and the statute of limitations begins to run, on the date on which the time for filing such an appeal expired.”) (internal citations and quotation marks omitted).
More than a year later, Petitioner submitted his first pro se petition under the Pennsylvania Post Conviction Relief Act (the “PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq. That petition was dated August 29, 2018, and was received by the state court on September 13, 2018. ECF No. 14-1 at 13 and 19-20. Because Pennsylvania applies the so-called “prisoner mailbox rule” to pro se PCRA petitions, see, e.g., Com. v. Little, 716 A.2d 1287, 1288-89 (Pa. Super. Ct. 1998), the effective date of filing thereof was August 29, 2018 - 448 days after June 7, 2017.
On December 5, 2018, the trial court issued an order notifying Petitioner that his first PCRA petition would be dismissed for lack of jurisdiction. ECF No. 14-1 at 57. On December 31, 2018, the first PCRA trial court issued an order denying the petition for lack of jurisdiction because it was not filed within the one-year period of time allowed under the Act. Id. at 61 and 63. Petitioner's timely response to the order of December 5, 2018 appears to have been received after the first dismissal order was issued. Id. at 65 and 78. The trial court again entered an order dismissing the first PCRA petition on January 2, 2018. Id. at 80-81.
Petitioner appealed to the Pennsylvania Superior Court, which affirmed the trial court's dismissal of the first PCRA petition for lack of jurisdiction on December 12, 2019. Id. at 90, 9395. The Pennsylvania Supreme Court denied allocatur on June 1, 2020. Id. at 97.
During the pendency of the appeal in the first PCRA proceeding, Petitioner filed a second pro se PCRA petition on or about February 13, 2020. Id. at 99 and 110. The second PCRA trial court issued notice of its intent to deny the second PCRA petition for lack of jurisdiction on June 30, 2020. Id. at 152, 157, and 160. The second PCRA petition then was dismissed as untimely on July 21, 2019. Id. at 163. Dismissal for lack of jurisdiction was affirmed by the Superior Court on April 29, 2021 - but on the ground that the court lacked jurisdiction because the appeal in the first PCRA proceeding was pending at the time that the second PCRA petition was filed. Id. at 171 and 174. There is no record that Petitioner sought allocatur from the Pennsylvania Supreme Court in the second PCRA proceedings.
This Court received the initial habeas petition in the present matter on July 13, 2021. ECF No. 1. The initial petition was dated July 8, 2021. Id. at 15. In the absence of evidence to the contrary, this Court presumes an effective filing date of July 8, 2021 under the prison mailbox rule . Petitioner submitted the Amended Petition on July 29, 2021. ECF No. 5.
Petitioner raises three claims for relief in the Amended Petition. They are as follows:
Ground One: Whether Petitioner's second PCRA was timely in that he properly invoked a timeliness exception under 42 PA. C.S. § 9545(B)(1)(ii);
Ground Two: Whether my trial attorneys rendered ineffective assistant when they failed to obtain exculpatory video evidence and inducing unlawful guilty plea; and
Ground Three: Petitioner was denied the right to withdraw his illegal guilty plea, which was timely made and therefore Petitioner was denied his Sixth Amendment Right to a Jury Trial, which he intended to exercise.Id. at 5, 7, and 8. In the Amended Petition, Petitioner asserts without specificity that he suffered “a fundamental miscarriage of justice.” Id. at 15. However, this statement is clarified somewhat in Petitioner's opposition brief, wherein Petitioner argues that the alleged miscarriage of justice arose from that the alleged ineffective assistance of his trial court counsel in failing to obtain discovery, and for advising Petitioner that the Commonwealth did not have to produce video evidence that the traffic stop leading to his arrest was not supported by probable cause. ECF No. 23 at 5.
On November 10, 2021, Respondents filed the instant Motion to Dismiss. ECF No. 14. In the Motion, Respondents argue that the Amended Petition is untimely, and that the claims raised therein are unexhausted and procedurally defaulted. Id. at 7, 10, and 11. Petitioner filed his response in opposition and supporting memorandum on December 9, 2021. ECF Nos. 22 and 23.
The pending Motion to Dismiss is ripe for consideration.
B. Ground One should be dismissed as not cognizable under habeas.
At Ground One of the Amended Petition, Petitioner alleges that the state courts erred in dismissing his second PCRA Petition as untimely. ECF No. 5 at 5. This claim is simply not cognizable in federal habeas proceedings. As recently explained by this Court:
Petitioner's challenge as to the PCRA statute of limitations represents an argument that the PCRA process was defective as to him.... [C]hallenges concerning alleged errors in collateral proceedings are clearly outside the scope of federal habeas review. See Abu-Jamal v. Horn, 520 F.3d 272, 297 (3rd Cir. 2008), rev'd on other grounds, Beard v. Abu-Jamal, [558 U.S. 1143, (2010)] (claim that petitioner was denied due process during post-conviction proceedings is not a cognizable claim under federal habeas review); Lambert [v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004)] (petitioner's claim of evidentiary misconduct by the Commonwealth during a PCRA hearing is not a cognizable claim for purposes of federal habeas review); Hassine [v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998)]; Beeman v. Ortiz, 161 Fed.Appx. 767, 769 (10th Cir. 2006) (finding that attack on state post-conviction procedures is not cognizable under § 2254); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002) (“[R]elief may not be granted to a habeas petitioner for alleged deficiencies in a state's post-conviction procedure[.]”). Therefore, it appears that Magistrate Judge Rice correctly found that Petitioner's claim as to the “constitutional infirmity” of the PCRA's one-year statute of limitations is not a viable claim for purposes of federal habeas review.Green v. Capozza, CV 20-172, 2020 WL 1250172, at *6 (W.D. Pa. Feb. 25, 2020) (quoting Malone v. Coleman, CIV.A. 09-2656, 2010 WL 891031, at *1 (E.D. Pa. Mar. 5, 2010)), report and recommendation adopted, 2020 WL 1248702 (W.D. Pa. Mar. 16, 2020). See also Hassine, 160 F.3d at 954 (“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. We have often noted the general proposition that habeas proceedings are ‘hybrid actions'; they are ‘independent civil dispositions of completed criminal proceedings.'”); Lambert, 387 F.3d at 247 (“habeas proceedings are not the appropriate forum for Lambert to pursue claims of error at the PCRA proceeding”).
Respondents did not raise this issue in the Motion to Dismiss. However, pursuant to Rule of the Rules Governing Section 2254 Cases, this Court may dismiss the Petition if it plainly appears on its face that the Petitioner is not entitled to federal habeas relief.
Rule 4 provides, in relevant part, that:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
In interpreting Rule 4, the Advisory Committee Notes to Rule 4 observe that:
28 U.S.C. § 2243 requires that the writ shall be awarded, or an order to show cause issued, “unless it appears from the application that the applicant or person detained is not entitled thereto.” Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition.
Because it is clear from the face of the Amended Petition that Ground One is not cognizable in federal habeas, it should be dismissed sua sponte.
C. The AEDPA Statute of Limitations
Generally, 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 (the “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.
1. Grounds Two and Three have a trigger date of June 7, 2017 at the latest.
Respondents in the Motion to Dismiss failed to address whether any of Petitioner's claims might have different trigger dates under Section 2244. Instead, it appears that Respondent made a default presumption that all of Petitioner's claims arose together when his conviction became final. A review of the Amended Petition reveals that Respondents were correct with respect to Grounds Two and Three, which, by their nature, would have accrued on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2254(d)(1)(A). As stated above, the latest possible date on which that occurred is June 7, 2017, 30 days after the latest date on which the record supports that the order denying Petitioner's post-sentence motions was issued.
However, in his opposition brief, Petitioner states that, “during [the] time period” of the pendency of his petition for allocatur to the Pennsylvania Supreme Court in his first PCRA proceedings, he reestablished contact with his sister, which had been lost at the time of his sentencing. He asserts that she provided him with an “affidavit[] which proves his Trail Attorneys [sic] ineffectiveness[, ]” and provided the basis for his second PCRA petition. ECF No. 23 at 2.
It is noteworthy that the affidavit - and indeed, any mention of Petitioner's sister - is absent from his second PCRA petition or the exhibits submitted therewith. ECF No. 14-1 at 99-150. Further, the second PCRA trial court recognizes the lack of any witness statements in his second PCRA petition, as well as the rehashing of Petitioner's prior, untimely arguments. Id. at 153-56.
In support thereof, Petitioner attaches an affidavit purportedly from his sister, with an incomplete date of “AUGUST__2020[, ]” discussing Petitioner's instructions to his trial counsel. ECF No. 23-1 at 1-2; see also ECF No. 5-1 at 2. These instructions related to obtaining video evidence that the traffic stop underlying Petitioner's arrest allegedly was unsupported by probable cause, as well as Petitioner's desire to proceed to trial if his case was not dismissed of referred to Veterans' Court. ECF No. 23-1 at 1.
Liberally construed, it appears that Petitioner is arguing that this affidavit constitutes after-discovered evidence that saves his claims. ECF No. 23 at 3. Petitioner further argues that, had his trial counsel followed his instructions, they would have obtained exculpatory video evidence that would have resulted in the suppression of the traffic stop that led to his arrest. Id. at 5. Petitioner asserts that this alleged constitutional deprivation has resulted in a fundamental miscarriage of justice. Id.
The AEDPA's definition of new evidence does not include evidence that was “previously known, but only newly available[.]” Sistrunk v. Rozum, 674 F.3d 181, 189 (3d Cir. 2012) (internal quotes and citations omitted). Instead, “[e]vidence becomes ‘known' on “'he date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of reasonable diligence.'” Id. at 188-89 (quoting 28 U.S.C. § 2241(d)(1)(D)).
While the affidavit submitted by Petitioner relates to Grounds Two and Three of the Amended Petition, it hardly is new for the purposes of the AEDPA's triggering date. Instead, Petitioner raised the same arguments to which the affidavit relates at least as early as his postsentence motion and his first, untimely, PCRA petition. ECF No. 14-1 at 8 and 14-15. Indeed, the affidavit itself indicates that Petitioner was well-aware of the factual predicate for any evidence contained therein prior to pleading guilty. ECF No. 23-1 at 1.
Because the factual predicates of Grounds Two and Three already were known to Petitioner when his conviction because final, his sister's affidavit does not affect the trigger date of Grounds Two and Three - which is, at the latest, June 7, 2017.
2. Grounds Two and Three are time-barred.
The calculation of the statute of limitations under Section 2244(d)(1) and (2) for Petitioner's Grounds Two and Three is as follows.
As stated above, the trigger date is June 7, 2017 (the date Petitioner's conviction became final). The clock on the AEDPA's one-year statute of limitations ran from that date, until August 29, 2018 - the effective filing date of Petitioner's pro se first PCRA petition - a period of 448 days.
However, in order to be timely under AEDPA, this habeas proceeding would have to have been filed on or before June 7, 2018. This case has an effective filing date of July 8, 2021. Accordingly, Grounds Two and Three are untimely.
Furthermore, none of the time of the pendency of the first PCRA petition is excludable from the limitations period with respect to Grounds Two and Three it was not “properly filed” under the meaning of Section 2254(d)(2).
The Pennsylvania Post Conviction Relief Act provides, in pertinent part:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within one year of the date the claim could have been presented.42 Pa. Cons. Stat. § 9545(b)(1)-(2). The Pennsylvania courts consistently have held that the above timing provisions are jurisdictional in nature, and must be strictly construed. See, e.g., Com. v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008) (citing cases). As such, a PCRA trial court is barred even from considering a petition that is not filed within one year of the date that the conviction it is attacking became final (in Petitioner's case, one year from no later than June 7, 2017), unless that petition falls into one of the three exceptions enumerated in the statute, and was filed within one year of the date that the claim first could have been presented. Id. See also Com. v. Fears, 250 A.3d 1180, 1189 (Pa. 2021), reconsideration denied (July 8, 2021).
State court petitions for collateral review do not toll the AEDPA's one-year statute of limitations if they contain defects that implicate that petition's “‘condition[s] to filing,' which go to the application for post-conviction review[.]” Satterfield v. Johnson, 434 F.3d 185, 191 (3d Cir. 2006) (quoting Artuz v. Bennett, 531 U.S. 4, 10 (2000)). Failure to satisfy such conditions “prevents a petition from being ‘properly filed,' which in turn prevents application of AEDPA's tolling provision.” Satterfield, 434 F.3d at 191. “Untimely filing, absence of jurisdiction, failure to pay fees, and failure to obtain a requisite certificate of appealability are all examples of flaws going to the application for relief itself.” Id. (citing Pace v. DiGuglielmo, 544 U.S. 408, 414-15 (2005)). These requirements prevent tolling because they “‘go to the very initiation of a petition and a court's ability to consider that petition. . . .'” Satterfield, 434 F.3d at 192 (quoting Pace, 544 U.S. at 417).
Applying the above standard to Petitioner's first PCRA petition, it is clear that the state courts lacked jurisdiction to address that petition on its merits under the PCRA. As such, Petitioner's first PCRA petition was not “properly filed” under the meaning of section 2244(d)(2), and the AEDPA's statute of limitations was not tolled during its pendency. Thus, the statute of limitations clock continued to run at least until February 13, 2020 - the effective date of the filing of Petitioner's second PCRA petition. At this point in the calculation, the clock has run a total of 981 days.
With respect to the second PCRA Petition, and as stated above, it was dismissed by the trial court as untimely. ECF No. 14-1 at 159 and 163. But the Superior Court affirmed dismissal on different grounds - that the second PCRA petition had been filed while Petitioner's appeal from the dismissal of his first PCRA petition still was pending. Id. at 173-74 (citing Com. v. Lark, 746 A.2d 585, 588 (Pa. 2000), overruled on other grounds, Com v. Small, 230 A.3d 1267, 1284 (Pa. 2020)). In Lark, the Pennsylvania Supreme Court held that the then-applicable 60-day period for asserting claims based on new evidence under the PCRA in a subsequent petition began to run on the date of the order dismissing the appeal of a pending, earlier-filed petition. Lark, 746 A.2d at 588.
In the present motion, Respondents argue that Petitioner's second PCRA petition was not properly filed because it was untimely. ECF No. 14 at 5-6. While Respondents acknowledge that the Superior Court affirmed the dismissal of the second PCRA petition because the first still was pending, id. at 14, they do not cite to any case law holding that dismissal on this basis does not toll the statute of limitations under the AEDPA. Compare with Munchinski v. Wilson, 807 F.Supp.2d 242, 266-68 (W.D. Pa. 2011), aff'd partially on other grounds 694 F.3d 308 (3d Cir. 2012) (discussing the confusion caused by Lark in the courts of Pennsylvania circa 2000).
However, even presuming, without deciding, that the pendency of the second PCRA petition somehow tolls the AEDPA's statute of limitations, the present habeas petition still is untimely. Even discounting the pendency of the second PCRA Petition, AEDPA's statute of limitations clock ran for 1019 days - 981 days until the filing of the second PCRA petition, and then another 38 days from May 31, 2021 (the date on which Petitioner's right to seek allocatur expired) to July 8, 2021 (the effective filing date of this habeas case). This is greater than one year. Instead, in order for these claims to have been timely, the Petition would have to have been filed by June 7, 2018. It was not. Accordingly, these claims are untimely based on the one-year period of limitation set forth in Section 2244(d)(1).
3. Petitioner has not demonstrated entitlement to equitable tolling or actual innocence.
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 first 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 Day 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.” Id. at 649 (quoting Pace, 544 U.S. at 418). “Mere excusable neglect is not sufficient.” Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 619 (3d Cir. 1998). Additionally, “[i]n non-capital 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. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
While Holland did not involve an appeal from a decision of a 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, the United States Court of Appeals for the Third Circuit has 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. (internal quotes and citations omitted).
Applying this standard to the instant case, it is apparent that there is nothing in the record that would support the equitable tolling of the AEDPA's statute of limitations.
Additionally, to the extent that Petitioner's assertion of a “miscarriage ofjustice, ” ECF No. 23 at 5, is an attempt to invoke the “actual innocence” equitable exception to the statute of limitations, he still fails. See, e.g., McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). First, Petitioner ties his “miscarriage of justice” argument to suppressing the traffic stop that led to his arrest. ECF No. 23 at 4-5. He does not argue that he is actually innocent of the crimes of which he was convicted, nor does the evidence of record support such a conclusion. See Reeves v. Fayette SCI, 897 F.3d 154, 160 (3d Cir. 2018), as amended (July 25, 2018) (actual innocence standard requires showing that “more likely than not any reasonable juror would have reasonable doubt.”). See also Sistrunk v. Rozum, 674 F.3d at 191 (actual innocence refers to factual innocence, not legal insufficiency). Further, as set forth above, the affidavit is not “new” evidence under the meaning of Section 2244(d).
For these reasons, Grounds Two and Three of the Amended Petition are untimely, and Petitioner has not demonstrated entitlement to any equitable or statutory provision that would save them. Accordingly, Respondents' Motion to Dismiss should be granted, and the Petition should be dismissed with respect to these two claims.
D. Grounds Two and Three Are Procedurally Defaulted.
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have fairly presented his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or other available procedures for judicial review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996) (abrogated on other grounds by Beard v. Kindler, 558 U.S. 53, 60-61 (2009)); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996). Moreover, a petitioner must present every claim raised in the federal petition to the state's trial court, intermediate appellate court, and highest available court before exhaustion will be considered satisfied. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Lambert, 387 F.3d at 234. A petitioner shall not be deemed to have exhausted state remedies if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c). The petitioner has the burden of establishing that the exhaustion requirement has been met. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir. 1989); O'Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987).
In the present case, it is clear that Petitioner's Grounds Two and Three appear to have been exhausted at the state court level in the sense that there is no state avenue for relief available to him due to the PCRA's one-year statute of limitations. 42 Pa. Cons. Stat. § 9545(b)(1)-(2); see also ECF No. 14-1 at 14-15 and 97. However, beyond the question of exhaustion, a federal court may be precluded from reviewing habeas claims under the “procedural default doctrine.” Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor, 96 F.3d at 678; Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). This doctrine is applicable where, inter alia, a petitioner's claims are “deemed exhausted because of a state procedural bar[.]” Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000). Like the exhaustion requirement, the procedural default doctrine was developed to promote our dual judicial system and, in turn, it is based upon the “independent and adequate state law grounds” doctrine, which dictates that federal courts will not review a state court decision involving a question of federal law if the state court decision is based on state law that is “independent” of the federal question and “adequate” to support the judgment. Coleman, 501 U.S. at 750. The PCRA's one-year statute of limitations has been held to be an “independent and adequate” state law ground for denying habeas relief. Whitney v. Horn, 280 F.3d 240, 251 (3d Cir. 2002).
The United States Supreme Court has held that where a petitioner has to follow state procedure within the required time period, the “federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977) (failure to follow state's procedural rules results in procedural default, which bars federal review of petitioner's claims unless he can show cause and prejudice); Hull v. Freeman, 991 F.2d 86, 90-91 (3d Cir. 1993) (same). The Supreme Court in Coleman further stated that it recognized “the important interest in finality served by state procedural rules and the significant harm to the States that results from the failure of federal courts to respect them.” Coleman, 501 U.S. at 750.
The Supreme Court has defined “cause” as “some objective factor external to the defense.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “[A] showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or . . . some interference by officials” are two examples, but not an exhaustive list. Id.
Here, while Petitioner failed to establish external “cause” because it was his own lack of diligence that resulted in the procedural default of his claims in the state courts. See ECF No. 23 at 2 (“After no direct appeals were taken Petition tried to figure out the legal process for himself ....”).
As to Petitioner's assertion of a “fundamental miscarriage of justice, ” the United States Supreme Court requires a petitioner to demonstrate that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 321 (1995) (quoting Murray, 477 U.S. at 496). Under this standard, a 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, a 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.
As stated above, 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. Petitioner has demonstrated no reason why his default in state court should be excused, and, consequently, Grounds Two and Three Amended Petition should be dismissed.
E. Certificate of Appealability
Finally, a certificate of appealability should be denied because jurists of reason would not find it debatable whether Ground One of the Petition was cognizable under habeas, or that Grounds Two and Three were barred by the AEDPA's one-year statute of limitations and procedurally defaulted. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Ground One of the Amended Petition, ECF No. 5, be dismissed sua sponte pursuant to Rule 4 of the Rules Governing Section 2254 Cases. It is further recommended that Respondents' Motion to Dismiss, ECF No. 14, be denied as moot as to Ground One, and granted as to Grounds Two and Three, and that the Amended Petition be dismissed with prejudice. 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.
Hon. Arthur J. Schwab United States District Judge