Opinion
1:10-cV-346.
June 25, 2010
MEMORANDUM
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R R") of Magistrate Judge J. Andrew Smyser (Doc. 13), filed on June 15, 2010 which recommends that we dismiss Petitioner Jeffrey Armolt's ("Petitioner" or "Armolt") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed objections to the R R on June 24, 2010. (Docs. 14 and 15). Accordingly, this matter is ripe for our review.
I. PROCEDURAL AND FACTUAL BACKGROUND
Petitioner was convicted in the Court of Common Pleas of Adams County upon his plea of guilty to three counts of rape charged under 18 Pa. C.S.A. § 3121(a)(6), engaging in sexual intercourse with a complainant less than 13 years of age. On April 12, 2004, Armolt was sentenced on each count to a term of imprisonment of five to ten years. The three sentences were imposed to run consecutively. Thus, Armolt is serving a fifteen (15) to thirty (30) year sentence.
The pro se petition raises five grounds for habeas corpus relief: (1) that his guilty plea was unlawfully induced; (2) that his state law right to a speedy trial was violated; (3) that there was "[p]ossible collaboration by trial counsel and a layered ineffective assistance of counsel by governmental interference, or constructive deprivation thereof" (4) "Prosecutorial Misconduct, and Proper Time Credit"; and (5) lack of meaningful appellate review.
On June 15, 2010, Magistrate Judge Smyser issued a R R recommending that the petition be dismissed because the Petitioner did not exhaust his administrative remedies and because the petition is untimely. (Doc. 13). As noted above, on June 24, 2010, Petitioner filed objections and a memorandum of law in support thereof. (Docs. 14 and 15).
II. STANDARD OF REVIEW
When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
III. DISCUSSION
As correctly noted by Magistrate Judge Smyser, a person convicted in state court who seeks to present a claim in federal court pursuant to 28 U.S.C. § 2254 that his or her custody is in violation of the Constitution or laws of the United States must, under 28 U.S.C. § 2244(d)(1)(A) do so within one year after the judgment. There are four different ways to trigger the start of the one year statute of limitations period for section 2254 petitions. They are:
(1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time seeking such review;
(2) 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;
(3) 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
(4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
As noted by Magistrate Judge Smyser, the Petitioner's conviction became final on August 19, 2004, when he was sentenced. Petitioner did not file a direct appeal of the judgment conviction and sentence. On January 17, 2007, he filed a Post Conviction Relief Act ("PCRA") petition, which was dismissed by the trial court. Thus, the filing of the instant Petition is well outside the one-year statute of limitations applied to section 2254 petitions. In fact, within his response to the Respondents' answer to the habeas petition, the Petitioner does not dispute that the petition is untimely, but argues that the statutory deadline for a federal habeas corpus challenge to a state court conviction is a wrongful limitation upon a person's rights under the United States Constitution.
Additionally, Magistrate Judge Smyser concludes that Petitioner has not exhausted his state remedies. Petitioner has offered nothing in his objections to rebut this correct finding by the Magistrate Judge.
IV. CONCLUSION
Petitioner's objections provide us with no valid reason to disagree with Magistrate Judge Smyser's appropriate recommendation of dismissal in this matter. Accordingly, we shall adopt the R R. An appropriate Order shall issue.
ORDER
In accordance with the Memorandum issued on today's date, it is hereby ORDERED that:
1. The Report and Recommendation of Magistrate Judge J. Andrew Smyser (Doc. 13) is ADOPTED.
2. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. The Clerk of Court is directed to CLOSE this case.CIVIL NO. 1:10-CV-0346 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JEFFREY ARMOLT, Petitioner (Judge Jones) v. (Magistrate Judge Smyser) SUPERINTENDENT JOHN KERESTES and ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, THOMAS W. CORBETT, JR., Respondents
REPORT AND RECOMMENDATION
This is a 28 U.S.C. § 2254 habeas corpus petition brought by Jeffrey Armolt, who was convicted in the Court of Common Pleas of Adams County upon his plea of guilty to three counts of rape charged under 18 Pa. C.S.A. § 3121(a)(6), engaging in sexual intercourse with a complainant less than 13 years of age. He was sentenced on each count to a term of imprisonment of five to ten years. The three sentences were imposed to run consecutively. He is serving a fifteen (15) to thirty (30) year sentence. His sentence was imposed on April 12, 2004.The petitioner presents five grounds for habeas corpus relief in his pro se petition: 1) that his guilty plea was unlawfully induced; 2) that his state law right to a speedy trial was violated; 3) that there was "[p]ossible collaboration by trial counsel and a layered ineffective assistance of counsel by governmental interference, or constructive deprivation thereof"; 4) "Prosecutorial Misconduct, and Proper Time Credit"; and 5) lack of meaningful appellate review. (Doc. 1). None of these claims has been exhausted in state court.
The petitioner has not exhausted state judicial remedies as to his claims and he does not have any procedures left open to him to exhaust. He does not show cause for not having used state judicial remedial procedures to pursue his claims. He does not show prejudice. There is not any basis for a finding that there has been a miscarriage of justice.
The respondents filed a comprehensive Answer and Memorandum of Law in Opposition to Petitioner's Habeas Corpus Petition (Doc. 9) on May 3, 2010. Appendices to the Answer include the material state court documents.
A state prisoner must exhaust available state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. § 2254(b) and (c). This requirement serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) ("Comity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief."). "The exhaustion rule also serves the secondary purpose of facilitating the creation of a complete factual record to aid the federal courts in their review." Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995).
A habeas corpus petitioner bears the burden of demonstrating that he has exhausted state remedies. O'Halloran v Ryan, 835 F.2d 506, 508 (3d Cir. 1987). In order to exhaust state remedies for federal habeas corpus purposes, a petitioner must show that he has fairly presented his claim to the state courts. Picard v. Connor, 404 U.S. 270, 278 (1971). To have been fairly presented to the state courts both the legal theory and the facts supporting the claim must have been presented to the state courts. O'Halloran, supra, 835 F.2d at 508. Further, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, supra, 526 U.S. at 845.
If a claim has not been fairly presented to the state courts but state law clearly forecloses review, exhaustion is excused. Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002); See also McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) ("When a claim is not exhausted because it has not been `fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is `an absence of available State corrective process.'"). A procedural default occurs when a prisoner's claim is barred from consideration in the state courts by an "independent and adequate" state procedural rule. Id. Federal courts may not consider the merits of claims that have been procedurally defaulted unless the petitioner establishes "cause" to excuse the default and actual "prejudice" as a result of the alleged violation of federal law or unless the prisoner demonstrates that failure to consider the claim will result in a fundamental "miscarriage of justice." Id.
The petitioner filed no direct appeal from the judgment of conviction and sentence. On January 17, 2007, the petitioner filed a Post Conviction Relief Act petition, which was dismissed by the trial court. The Superior Court affirmed. Any second Post Conviction Relief Act petition filed by the petitioner would be untimely. See 42 Pa. C.S.A. § 9545(b) (petition must be filed within one year of the date judgement becomes final). There are no state remedies left for the petitioner to exhaust. The petitioner has procedurally defaulted his claims.
The petitioner has not shown cause and prejudice or a fundamental miscarriage of justice to excuse the default.
To establish "cause" for a procedural default, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Ineffective assistance of counsel may meet this standard but only if the ineffective assistance of counsel claim has been exhausted in the state courts as an independent claim. Id. In the instant case, the petitioner can not establish ineffective assistance of counsel as cause for his failure to present his defaulted claims to the Pennsylvania courts because the petitioner has not exhausted such ineffective assistance claims in state court. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (holding that "a procedurally defaulted ineffective-assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the `cause and prejudice' standard with respect to the ineffective-assistance claim itself."). Moreover, since there is no Sixth Amendment right to representation during a collateral challenge to a conviction, the ineffectiveness of PCRA counsel can not serve as cause for a procedural default. Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002).
The petitioner's habeas corpus petition is not timely under federal law, 28 U.S.C. § 2244(d)(1).
The petitioner was sentenced on April 12, 2004. (Doc. 9-3, pp. 3-14). On April 20, 2004, he filed through retained counsel a motion for the modification of his sentence. Id. at pp. 15-17. A modified, pro se, motion for the modification of his sentence was filed on April 23, 2004, followed by a motion filed through appointed counsel for leave to withdraw his guilty plea and for modification of his sentence, filed on May 20, 2004. Id. at pp. 21-27. On July 20, 2004, the court denied the motion for modification of sentence. Id. at p. 46.
On July 20, 2004, before Judge Kuhn, the petitioner rescinded the motion for leave to withdraw his guilty plea. The prosecution had not opposed his motion to withdraw his guilty plea.
The petitioner did not file a direct appeal in the Superior Court of Pennsylvania. The judgment of conviction was final as of August 19, 2004, when the appeal deadline had passed.
A person convicted in a state court of a crime who seeks to present a claim in federal court pursuant to 28 U.S.C. § 2254 that his or her custody is in violation of the Constitution or laws of the United States must, under 28 U.S.C. § 2244(d)(1)(A) do so within one year after the judgment. 28 U.S.C. § 2244(d)(1) provides:
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.
None of the provisions of 28 U.S.C. § 2244(d)(1)(B), (C) or (D) is arguably applicable here.
This habeas corpus petition is untimely. The conviction was final as of August 19, 2004, and the time for filing a federal habeas corpus petition expired on August 19, 2005. The petitioner does not challenge that the petition is untimely under the statute. In a response (Doc. 12) filed by the petitioner on May 12, 2010 to the respondents' answer to the habeas petition, the petitioner characterizes the statutory deadline for a federal habeas corpus challenge to a state court conviction as a wrongful limitation upon a person's rights under the United States Constitution to challenge a state court conviction in federal court. The petitioner claims that he is actually innocent of the charges to which he pleaded guilty, multiple rapes of a twelve year old girl. As already noted, he was in fact afforded the opportunity in state court to withdraw his guilty plea and to go to trial, which he elected not to do.
The petitioner does not provide a colorable showing of actual innocence. The inculpatory evidence against the petitioner was quite weighty. The petitioner was the boyfriend of the complainant's mother. The complainant provided a statement that the petitioner engaged in sexual intercourse with her on multiple occasions. She was impregnated and gave birth to a premature baby. Inculpatory DNA evidence was obtained through DNA taken from the petitioner and from the baby.
It is accordingly recommended that the petition for a writ of habeas corpus be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1).
NOTICE
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3 of the Rules of Court, M.D.Pa., which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.