Opinion
Civil Action No. 16-1489
03-27-2017
ANDY BUXTON, Petitioner, v. COMMONWEALTH OF PENNSYLVANIA and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Judge David Stewart Cercone/Chief Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Amended Petition"), ECF No. 13, be dismissed without prejudice before being served because Petitioner has failed to exhaust state court remedies. It is further respectfully recommended that a certificate of appealability be denied.
II. REPORT
A. Relevant Procedural History
Andy Buxton ("Petitioner"), a state prisoner, has filed a habeas petition pursuant to 28 U.S.C. § 2254, seeking to challenge his convictions for, inter alia, possession of drugs with intent to deliver, 35 P. S. § 780-113 §§ A30, being a member of a corrupt organization, 18 Pa. C.S.A. § 911 §§ B3, and, criminal use of a communication facility, 18 Pa.C.S.A. § 7512 §§ A. As a consequence, Petitioner was sentenced in the Court of Common Pleas of Allegheny County on July 14, 2016, to an aggregate term of 7 to 14 years of incarceration. Commonwealth v. Buxton, No. CP-02-CR-0012834-2013. Those dockets reveal that Petitioner, through Attorney Parker Sumner, filed a post sentence motion on July 22, 2016. That post sentence motion was never ruled on by the trial court. On July 27, 2016, Petitioner filed pro se a motion for new counsel with the trial court. On August 1, 2016, the court granted Petitioner's motion for appointment of new counsel. On September 21, 2016, Attorney Erika Kreisman entered her appearance on behalf of Petitioner.
The Court takes judicial notice of the criminal docket of the Court of Common Pleas of Allegheny County in Petitioner's case which is available at
https://ujsportal.pacourts.us/docketsheets/cp.aspx (Site last visited 3/27/2017).
Petitioner initiated this action on September 28, 2016, the date on which the Clerk's Office received his Motion for Leave to Proceed In Forma Pauperis (the "IFP Motion"), ECF No. 1, in order prosecute a habeas petition. Because the IFP Motion was deficient, the Court issued a Deficiency Order on October 3, 2016. ECF No. 2. Petitioner waited until February 8, 2017 to file a new IFP Motion. ECF No. 5. The Court denied that new IFP Motion because Petitioner had $853.66 in his inmate account and ordered Petitioner to pay the filing fee of $5.00. Petitioner paid the filing fee, ECF No. 7, and the Petition was filed. ECF No. 8. On March 14, 2017, Petitioner filed a Motion to Appoint Counsel, which was denied. ECF Nos. 9, 11. Petitioner also filed a Motion for Leave to File an Amended Petition, which was granted. ECF Nos. 10, 12. The Amended Petition was docketed on March 21, 2017. ECF No. 13.
In the original Petition, Petitioner raised only one claim, i.e., a claim that because there were irregularities in the grand jury process, the indictment should have been dismissed. ECF No. 8 at 5. In the Amended Petition, Petitioner added five grounds to the original ground that there were irregularities in the grand jury proceedings. ECF No. 13 at 16.
Because Petitioner has not exhausted his state court remedies, given that he may yet be able to file a direct appeal and/or a Post Conviction Relief Act ("PCRA") petition, the Amended Petition should be dismissed without prejudice for failure to exhaust.
B. Rule 4 pre-service dismissals
Rule 4 of the Rules governing Section 2254 cases ("Rule 4") and hence, the instant case, provides in relevant part that:
The clerk must promptly forward the [Section 2254 habeas] petition to a judge under the court's assignment procedure, and the judge must promptly examine it. 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.In addition to ordering state court records and/or opinions, a federal habeas court may, under Rule 4, take judicial notice of those state court records, dockets and/or state court opinions as well as its own court records. See, e.g., Barber v. Cockrell, 4:01-CV-0930, 2002 WL 63079, at *1 n.4 (N.D.Tex. Jan. 8, 2002)(in a Rule 4 case, the court took judicial notice of its own records of a prior habeas petition filed by the petitioner); United States ex. rel. Martin v. Gramley, No. 98 C 1984, 1998 WL 312014, at *1 (N.D. Ill. June 3, 1998)(in a Rule 4 summary dismissal, the court took "judicial notice of the opinion of the Illinois Appellate Court in this case."); Barber v. Cockrell, No. 4:01-CV-930, 2002 WL 63079, at * 1 (N.D. Tex. Jan. 8, 2002)(in a Rule 4 case, the court stated that from "the face of the petition, and from [state] court records of which this Court can take judicial notice, the court determines that this is a successive petition. . . ."). Accordingly, in considering this Amended Petition, this Court takes judicial notice of the docket in Petitioner's criminal cases in the Court of Common Pleas of Allegheny County.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Amended Petition should be dismissed pre-service because Petitioner has failed to exhaust his state court remedies given that at the time he initiated these proceedings, he had a pending post sentence motion in the criminal cases, and also he may yet be able to file a direct appeal and/or a PCRA petition. Williams v. Wynder, 232 F. App'x 177 (3d Cir. 2007) (affirming District Court's order, dismissing the Section 2254 habeas petition prior to service for failure to exhaust).
C. Discussion
At the time of the filing of this Petition and presently, Petitioner has a post sentence motion pending in the Court of Common Pleas of Allegheny County, which was filed on July July 22, 2016. The Court of Common Pleas has never explicitly ruled on that post sentence motion. However, Pa. R. Crim P. 720 provides that a post sentence motion is denied by operation of law 120 days after it has been filed if a judge fails to decide the post sentence motion. By our calculation, the 120 days would have run out on December 19, 2016, which is after September 28, 2016, the date he initiated these habeas proceedings meaning, that at the time of the filing of this Petition, Petitioner had not exhausted his state court remedies. However, the Clerk of Court of Allegheny County has not entered an order deeming the post sentence motion denied by operation of law pursuant to Rule 720 (B)(3)(c). State law provides that where the Clerk of Courts fails to enter the order required by Rule 720(B)((3)(c), the time for filing an appeal is extended. See, e.g., Com. v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) ("This Court has previously held that, where the clerk of courts does not enter an order indicating that the post-sentence motion is denied by operation of law and notify the defendant of same, a breakdown in the court system has occurred and we will not find an appeal untimely under these circumstances.") (citing Commonwealth v. Repko, 817 A.2d 549 (Pa.Super.2003); Commonwealth v. Braykovich, 664 A.2d 133 (Pa. Super. 1995)). Accordingly, under state law, it appears that Petitioner may yet be able to file a direct appeal. Certainly, he is able to file a PCRA petition.
Pa. R. Crim. P. 720 provides in relevant part:
(B) Optional Post-Sentence Motion.
. . . .
(2) Trial Court Action.
(a) Briefing Schedule. Within 10 days after a post-sentence motion is filed, if the judge determines that briefs or memoranda of law are required for a resolution of the motion, the judge shall schedule a date certain for the submission of briefs or memoranda of law by the defendant and the Commonwealth.
(b) Hearing; Argument. The judge shall also determine whether a hearing or argument on the motion is required, and if so, shall schedule a date or dates certain for one or both.
(c) Transcript. If the grounds asserted in the post-sentence motion do not require a transcript, neither the briefs nor hearing nor argument on the post-sentence motion shall be delayed for transcript preparation.
(3) Time Limits for Decision on Motion. The judge shall not vacate sentence pending decision on the post-sentence motion, but shall decide the motion as provided in this paragraph.
(a) Except as provided in paragraph (B)(3)(b), the judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in paragraph (B)(3)(b), the motion shall be deemed denied by operation of law.
(b) Upon motion of the defendant within the 120-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the judge fails to decide the motion within the 30-day extension period, the motion shall be deemed denied by operation of law.
(c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and, as provided in Rule 114, forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant's attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied. This order is not subject to reconsideration.
(d) If the judge denies the post-sentence motion, the judge promptly shall issue an order and the order shall be filed and served as provided in Rule 114.
(e) If the defendant withdraws a post-sentence motion, the judge promptly shall issue an order memorializing the withdrawal, and the order shall be filed and served as provided in Rule 114.
(4) Contents of Order. An order denying a post-sentence motion, whether issued by the judge pursuant to paragraph (B)(3)(d) or entered by the clerk of courts pursuant to paragraph (B)(3)(c), or an order issued following a defendant's withdrawal of the post-sentence motion, shall include notice to the defendant of the following:
(a) the right to appeal and the time limits within which the appeal must be filed;
(b) the right to assistance of counsel in the preparation of the appeal;
(c) the rights, if the defendant is indigent, to appeal in forma pauperis and to proceed with assigned counsel as provided in Rule 122; and
(d) the qualified right to bail under Rule 521(B).
Because it may yet be possible for Petitioner to file a direct appeal with his new counsel, Attorney Kreisman, and the federal habeas doctrine of exhaustion requires him to do so, and because it is possible that the appeal to the Superior Court could afford Petitioner relief, this instant Amended Petition should be dismissed without prejudice to the filing a new habeas petition after state court remedies have been exhausted if indeed those state court remedies do not afford Petitioner relief.
See, e.g., Buxton v. Pennsylvania, 398 F. App'x 704, 706 (3d Cir. 2010) ("To satisfy the exhaustion requirement, '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.'") (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). --------
In like manner, it remains open to Petitioner to file a PCRA petition, which he must do, if he wants to exhaust his claim of ineffective assistance of counsel contained in the Amended Petition, ECF No. 10-1 at 16, which must be raised in a PCRA petition, pursuant to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (holding that claims of trial counsel's ineffectiveness must generally be raised in a PCRA petition). Because at the time of the filing of this Petition, Petitioner had not exhausted his state court remedies, the Petition should be dismissed without prejudice for failure to exhaust. See, e.g., Rose v. Lundy, 455 at 518 (in habeas cases involving state prisoners, "federal courts apply the doctrine of comity, which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter."); Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998) ("Nor should we discourage petitioners from exhausting all their claims in state court, even by means of a second or subsequent petition for post-conviction relief where permissible under state law, before seeking habeas review in federal court.")(emphasis added); Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) ("[t]he appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal habeas petition is filed, not when it comes on for a hearing in the district court or court of appeals.") (citing Brown v. Maass, 11 F.3d 914, 915) (9th Cir. 1993)). Accordingly, it is recommended that the Amended Petition be dismissed before being served albeit without prejudice.
D. Certificate of Appealability
Section 2253 generally governs appeals from District Court orders regarding habeas petitions. Section 2253 essentially provides in relevant part that a certificate of appealability, which is a prerequisite for allowing an appeal to a Court of Appeals, should not be issued unless the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (C)(2). There is a difficulty in applying Section 2253(C)(2) when the District Court does not decide the case on the merits, i.e., declines to address questions of constitutional violations, but instead decides the case on a procedural ground without determining whether there has been a denial of a constitutional right. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000); Walker v. Government of The Virgin Island, 230 F.3d 82, 89-90 (3d Cir. 2000).
In resolving this difficulty, the Supreme Court in Slack v. McDaniel, held that
[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.Slack v. McDaniel, 529 U.S. at 484. Hence, the analysis as to whether a certificate of appealability should issue to review a procedural question, has "two components, one directed at the underlying constitutional claims and one directed at the district court's procedural holding." Id. at 473. The test is conjunctive and both prongs must be met. See Walker v. Government of the Virgin Islands, 230 F.3d at 90.
Applying this standard to the instant case, the Court concludes that jurists of reason would not find it debatable whether dismissal of the Amended Petition for failing to exhaust state court remedies was correct. Accordingly, a certificate of appealability should be denied. Because of this conclusion and the fact that the test for granting a certificate of appealability is conjunctive, this Court does not need to reach the other prong of the Slack v. McDaniel test, i.e., whether Petitioner has made a substantial showing of a denial of a constitutional right.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Amended Petition be dismissed without prejudice before being served because Petitioner has failed to exhaust state court remedies. The certificate of appealability should 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.
Respectfully submitted: Date: March 27, 2017
s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE cc: The Honorable David Stewart Cercone
United States District Judge
ANDY BUXTON
MS1885
SCI MERCER
801 Butler Pike
Mercer, PA 16137
Pa. R. Crim. P. 720