Opinion
Case No. 1:20-cv-00267 (Erie)
04-06-2021
DONALD CARNES, Petitioner, v. WARDEN ZAKEN, THE DISTRICT ATTORNEY OF THE COUNTY OF ERIE, THE ATTORNEY GENERAL THE STATE OF PENNSYLVANIA Respondents
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 7) I. Recommendation
Before the Court is a Petition for a Writ of Habeas corpus filed by state prisoner Donald Carnes (Carnes) under 28 U.S.C. § 2254. ECF No. 7. He is challenging the judgment of sentence imposed on him by the Court of Common Pleas of Erie County, Pennsylvania at its criminal docket number CP-25-CR-0001634-2013. Respondents argue that Carnes' petition is untimely, procedurally defaulted, and lacks merit should the Court reach the substance of his claims. For the reasons discussed herein, it is respectfully recommended that the Court deny each of Carnes' claims for relief and dismiss his Petition with prejudice. II. Report
A. Factual and Procedural Background
1. The Underlying Offense
The Court takes the following factual and procedural background from the Pennsylvania Superior Court's opinion addressing Carnes' direct appeal from his conviction and sentence:
On multiple occasions in 2012, Appellant sexually molested his girlfriend's eight-year-old daughter. Following a bench trial, the court convicted Appellant of two counts of indecent assault and one count each of rape of a child, corruption of minors, EWOC, aggravated
indecent assault of a child, and indecent exposure. Prior to sentencing, the Commonwealth filed notice of intent to seek mandatory minimum sentences for Appellant's rape of a child and aggravated indecent assault of a child convictions, pursuant to 42 Pa. C.S.A. § 9718 (stating person convicted of rape of child or aggravated indecent assault of child shall be sentenced to at least ten (10) years' imprisonment).Commonwealth v. Carnes, 2015 WL 7572954, at *1 (Pa. Super. Ct. Jan. 23, 2015). The Superior Court affirmed Carnes' convictions, but vacated his judgment of sentence in light of its decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. Ct. 2014 (en banc), Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. Ct. 2014), and Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. Ct. 2014).
On May 8, 2014, the court conducted Appellant's sentencing hearing. Prior to imposing the sentences, the court classified Appellant as a sexually violent predator. Thereafter, the court sentenced Appellant to two hundred sixteen (216) to four hundred thirty-two (432) months' imprisonment for the rape of a child conviction. The court imposed a concurrent term of one hundred twenty (120) to two hundred forty (240) months' imprisonment for the aggravated indecent assault of a child conviction. Regarding the convictions for corruption of minors, EWOC, and one count of indecent assault, the court sentenced Appellant to concurrent terms of twelve (12) to twenty-four (24) months' imprisonment. For Appellant's indecent exposure conviction, the court sentenced Appellant to a concurrent term of three (3) to twenty-four (24) months' imprisonment. The final count of indecent assault merged with the rape conviction for sentencing purposes. Thus, Appellant received an aggregate sentence of two hundred sixteen (216) to four hundred thirty-two (432) months' imprisonment.
On Monday, May 19, 2014, Appellant timely filed a post-sentence motion. In it, Appellant challenged his sentence as follows: "[Appellant's] sentence is violative of the Pennsylvania Sentencing Guidelines and [Appellant] should be re-sentenced." (Post-Sentence Motion, filed 5/19/14, at 1). Appellant did not elaborate on how his sentence violated the guidelines. Also on May 19, 2014, the court denied Appellant's post-sentence motion.
On March 13, 2015, the Court of Common Pleas re-sentenced Carnes to an aggregate term of twenty to forty years imprisonment. Carnes did not take a direct appeal from his re-sentencing. See State Court docket at p. 13.
Five years later, on January 2, 2020, Carnes did file a petition seeking post-conviction relief under the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541-9546 (1982). The Court of Common Pleas denied Carnes' PCRA petition on February 27, 2020. Carnes did not appeal that dismissal and instead, filed the instant petition seeking federal habeas relief in this Court.
2. Proceedings in Federal Court
Carnes filed the instant petition for a writ of habeas corpus with this Court on September 2, 2020, the date he signed and mailed it for filing. See, e.g., Scales v. Atty. Gen. of Penna., 2018 WL 3823779, *1 (W.D. Pa. Aug. 10, 2018). This Court entered an order directing the Office of the District Attorney of Erie County to enter an appearance and to file an answer to Carnes' petition. ECF No. 8. On February 23, 2021, the District Attorney's office filed a Response to Carnes' petition. ECF No. 14. Copies of the relevant state appellate filings and other state court records were received by the Clerk of this Court on March 8, 2021. ECF No. 18. Carnes did not file a reply. The petition is, therefore, ready for disposition.
B. Petitioner's Claims
Carnes' habeas petition raises two grounds for relief. ECF No. 7. First, he brings a claim of actual innocence. Id, p. 5. Carnes' second ground for relief is labeled "vindictiveness on appeal, Cunningham violation." Id., p. 8. He contends that all of these claims were properly exhausted in state court. Id., p. 13.
The Respondents disagree. They argue Carnes' petition is untimely, procedurally defaulted, and, in the alternative, meritless. See generally, ECF No. 10.
C. The Habeas Corpus Legal Standard
Habeas corpus is an "'extraordinary remedy' reserved for defendants who were 'grievously wronged' by the criminal proceedings." Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)). In enacting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress "significantly limited the federal court's power to grant a writ of habeas corpus." Tolbert v. Ferguson, 2019 WL 4677357 at *2 (E.D. Pa. Aug. 8, 2019). Under § 2254, a district court may entertain an application for a writ of habeas corpus filed by a person in state custody "only on the ground that he is in custody in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a). Federal courts also must give considerable deference to determinations made by state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010). Thus, if a claim presented in a § 2254 petition has been adjudicated on the merits in state court proceedings, habeas relief cannot be granted unless:
the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d). Thus, it is the habeas petitioner's burden to show that the state court's decision was contrary to or an unreasonable application of United States Supreme Court precedent or an unreasonable determination of the facts. Moreno v. Ferguson, 2019 WL 4192459, at *3 (W.D. Pa. Sept. 4, 2019).
The United States Court of Appeals for the Third Circuit has emphasized the heavy burden habeas petitioners bear: "even 'clear error'" by the state courts "will not suffice." Orie v. Sec. Pa. Dept. of Corrections, 940 F.3d 845, 850 (3d Cir. 2019). Rather, the state court must be wrong "beyond any possibility for fair-minded disagreement." Id. (citations and some internal quotations omitted). Moreover, the factual determinations of the state courts are presumed correct. See 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.").
D. Rules Governing Review of Petitions for Habeas Corpus
As the Court of Appeals for the Third Circuit explained,
Undergirding federal habeas law is an extensive procedural framework that limits when and how a petitioner may raise post-conviction claims for relief and which claims are reviewable in federal court. Concerns of federalism, comity, and finality shape this complex framework and have required [courts] to generate specific rules for when a petitioner's claim may be adjudicated on the merits.Mathias v. Superintendent Frackville SCI, 876 F.3d 462, 465 (3d Cir. 2015). Among the "specific rules" relevant to the resolution of Carnes' claims are those of timeliness and exhaustion.
1. Timeliness
Before the Court can address the merits of Carnes' petition, a threshold question must be answered: whether the petition was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Pursuant to AEDPA, a state prisoner must file his federal habeas claims within one year of the date his judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). Because he did not file an appeal of his with the Pennsylvania Superior Court, Carnes' judgment of sentence became final on April 13, 2015, which marks the day after the expiration of the thirty-day appeal period in Pennsylvania. See State Court docket. See also Pa. R. Crim. P. 720(a)(3); Calhoun v. Pennsylvania, 2020 WL 868199, at *1 (E.D. Pa. Feb. 20, 2020); 28 U.S.C. § 2244(d)(1)(A) (the one-year federal limitations period generally begins on the date the petitioner's judgment of sentence became final "by the conclusion of direct review or the expiration of the time for seeking such review"). Therefore, Carnes' federal habeas petition needed to be filed on or before April 13, 2016, to meet that deadline. Because Carnes' filed the instant § 2254 petition on September 2, 2020, it is untimely by one thousand, nine hundred and sixty-nine days, or by more than five years. Carnes therefore sought federal habeas relief well outside the one-year limitations period and his petition is statutorily time-barred. He offers no argument to the contrary. Given this deficiency, the Court must determine whether he can take advantage of the statutory tolling provision set out in Section 2244(d)(2) before dismissing his claims as untimely.
The dates used to determine the timeliness of Carnes' petition are taken directly from the Common Pleas, Superior Court, and Supreme Court of Pennsylvania's publicly available dockets. See https://ujsportal.pacourts.us/CaseInformation.aspx (last visited May 19, 2020) (referred to here as "State Court Docket.").
It is appropriate where, like here, the habeas petitioner has been put on notice of a statute of limitations defense, to place some burden on him or her to show why the petition is not untimely. See, e.g., Sprankle v. Gilmore, 2020 WL 5760354, at *4 (W.D. Pa. Sept. 28, 2020) (citing Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002) ("once a petitioner is given adequate notice and opportunity to respond to allegations that his petition is subject to dismissal pursuant to AEDPA's statute of limitations, petitioner has the burden of providing an adequate response"), abrogation on other grounds recognized in, Moreno v. Harrison, 245 Fed. Appx. 606 (9th Cir. 2007). See also Jackson v. Secretary for Dept. of Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002); Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002)("The purpose of requiring the defendant to plead available affirmative defenses in his answer is to avoid surprise and undue prejudice by providing the plaintiff with notice and the opportunity to demonstrate why the affirmative defense should not succeed.").
a. Statutory Tolling
No statutory tolling applies to Carnes' habeas petition because his state PCRA petitions was filed well after the expiration of his federal habeas filing deadline and were both considered untimely by the state PCRA court. See Sepulveda-Aldecoa v. Luther, 2019 WL 1077260, at *1 (E.D. Pa. Mar. 7, 2019) (citing Pace v. Diguglielmo, 544 U.S. 408, 417 (2005) ("Because the state court rejected petitioner's PCRA petition as untimely, it was not 'properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2)."); Long v. Wilson, 393 F.3d 390, 395 (3d Cir. 2004) (finding that petitioner's untimely PCRA petition did not toll the statute of limitations because "the limitations period had already run when it was filed").
b. Equitable Tolling
Carnes' petition could yet be saved if the Court applies a measure of equitable tolling. See Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 540 U.S. 826 (2003) (citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998) (citation omitted)). The Supreme Court has held that the habeas time bar is not jurisdictional, but instead subject to equitable tolling but AEDPA's one-year limitations period may be equitably tolled only in extraordinary situations. Holland v. Florida, 560 U.S. 631, 649-50 (2010). See also Severs v. Atty. Gen. of New Jersey, 2019 WL 5704591, at *2 (3d Cir. Nov. 9, 2019) (citation omitted). The limitation period will be equitably tolled when the principles of equity would make the rigid application of a limitation period unfair. Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). This is done on a case-by-case basis. See, e.g., Middleton v. Warden, 2020 WL 7059633, *4 (M.D. Pa. Dec. 2, 2020). To receive the benefit of equitable tolling, however, Jones bears the burden of showing that he (1) pursued his rights diligently, and (2) that extraordinary circumstances prevented him from filing a timely petition. Id. at 649. The Court of Appeals for the Third Circuit has advised that
"[t]here are no bright lines in determining whether equitable tolling is warranted in a given case." Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). Nevertheless, "courts must be sparing in their use of equitable tolling," Seitzinger v. Reading Hosp. & Medical Ctr., 165 F.3d 236, 239 (3d Cir. 1999), and should do so "only when the principles of equity would make the right application of a limitation period unfair." Miller [v. New Jersey State Dept. of Corr.], 145 F.3d [616, 618 (3d Cir. 1998).Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012). Circumstances extraordinary enough to invoke equitable tolling have been found only where "(1) the respondent has actively misled the petitioner, (2) the petitioner has in some extraordinary way been prevented from asserting his rights, (3) the petitioner has timely asserted his rights mistakenly in the wrong forum, or (4) the court itself has misled a party regarding the steps that the party needs to take to preserve a claim." Middleton, 2020 WL 7059633, at *4 (citing Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005)).
Nevertheless, it must be restated that, even where extraordinary circumstances do exist, "if the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing." Id. (citing Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003)).
Here, Carnes was put on notice regarding the untimeliness of his federal habeas petition by Respondents' Answer (see ECF No. 14, pp. 3-5) and he had an opportunity to address both the untimeliness and arguments in favor of tolling in a Reply, which he did not file. See LCvR 2254(E)(2). Thus, Carnes offers no explanation for the delay in bringing his federal habeas petition which would allow this Court to consider equitable tolling.
Our Local Rule provides that "Although not required, the petitioner may file a Reply (also known as "a Traverse") within 30 days of the date the respondent files its Answer. If the petitioner wishes to file a Reply after 30 days have passed, he or she must file a motion requesting leave to do so. An extension may be granted only for good cause shown." LCvR 2254(E)(2).
Furthermore, the Court has reviewed Carnes' filings and can discern no circumstance which could potentially trigger equitable tolling. In particular, there is no extraordinary circumstance that stood in Carnes' way and prevented a timely filing. See, e.g., Robinson v. Clark, 2020 WL 6940003, at *1 (E.D. Pa. Nov. 25, 2020). Equitable tolling of the AEDPA statute of limitations is thus unwarranted in this case and Carnes' petition is untimely. Carnes argues, however, that he is actually innocent of the rape charge and, therefore, his claim should be considered despite its untimeliness.
2. "Gateway" Actual Innocence Claim
Carnes asserts that expert testimony established "that forcefull (sic) penatration (sic) was not indicated clearly ruling out rape of a child." ECF No. 7, p. 6. The Court construes this allegation as asserting Carnes' actual innocence.
In "certain exceptional cases involving a compelling claim of actual innocence, a prisoner may assert actual innocence as a gateway for obtaining habeas review of defaulted claims." House v. Bell, 547 U.S. 518, 521, 536-37 (2006). However, whether a freestanding claim of actual innocence is cognizable on federal habeas review remains an open question in Supreme Court jurisprudence. See Reeves v. Fayette SCI, 897 F.3d 154, 160 n.4 (3d Cir. 2018) (citing McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)). Assuming, arguendo, that an assertion of actual innocence could constitute a freestanding claim, a petitioner's burden on any such claim "would necessarily be extraordinarily high" and "more demanding" than that applied to gateway actual-innocence claims. Herrera v. Collins, 506 U.S. 390, 416 (1993); see also Reeves, 897 F.3d at 160 n.4 (describing hypothetical freestanding actual-innocence standard as "more demanding" than that applied to gateway actual-innocence claims). To put the burden for establishing a freestanding claim of actual innocence in perspective, a gateway actual innocence claim that is asserted in an effort to overcome the statute of limitations bar for habeas cases will only prevail if it is based on "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence [ ] that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). The Schlup standard is "demanding and permits review only in the extraordinary case." House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation omitted). Finally, "actual innocence" means "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). See also Johnson v. DelBaso, 2021 WL 567247, at *5 (W.D. Pa. Feb. 16, 2021). The limited nature of this exception is underscored by the Court's explicit observation that "tenable actual-innocence gateway pleas are rare." Shaffer v. Mahally, 2020 WL 7699478, at *3 (M.D. Pa. Dec. 28, 2020) (quoting McQuiggin, 569 U.S. at 386)).
Here, Carnes' assertions do not satisfy the McQuiggin/Schlup standard for actual innocence. Nothing in Carnes' petition resembles new, reliable evidence that would support a claim that Carnes is actually and factually innocent. He points only to the testimony of Dr. Stephanie Russo, which was presented at trial by the prosecution. See Trial Transcript pp. 110-126. Dr. Russo was thoroughly cross-examined by Carnes' defense counsel. Id. And the state court additionally acknowledged that
Whether or not this child was abused in this case is based upon the totality of the evidence. The Court is not going to infer here that
there's an abnormal finding. [Dr. Russo's] testified it was a normal finding, and that's the evidence I have in front of me.State Court Record at p. 120. Therefore, Dr. Russo's testimony is not "new" for purposes of the actual innocence gateway. See, e.g., Schlup, 513 U.S. at 324 (holding that 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.") (emphasis added); Williams v. Glunt, 2016 WL 3476264, at *3 (E.D. Pa. June 27, 2016).
In sum then, Carnes does not assert actual innocence to escape the time bar and his claims should not be construed as asserting actual innocence. Carnes cannot overcome the time-bar based on the actual innocence exception and it is respectfully recommended that his petition be dismissed, with prejudice. III. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]" 28 U.S.C. § 2253(c)(1)(A). It also provides that "[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). "When 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, 529 U.S. at 484. Applying that standard here, jurists of reason would not find it debatable whether Carnes' claims should be dismissed because his petition is untimely. Thus, it is respectfully recommended that no certificate of appealability issue. IV. Conclusion
For the reasons set forth above, it is respectfully recommended that Carnes' Petition for a Writ of Habeas Corpus is dismissed, and that no certificate of appealability issue. V. Notice to the Parties
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.
Submitted to the Court this 6th day of April, 2021.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge