Opinion
Civil Action No. 15-cv-1560
03-10-2017
WILLIAM SHERMAN COWFER, Petitioner, v. JOHN KERESTES, THE ATTORNEY GENERAL OF THE STATE OF THE STATE OF PENNSYLVANIA, and THE DISTRICT ATTORNEY OF BUTLER COUNTY, Respondents.
United States District Judge Cathy Bissoon
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that Respondents' motion to dismiss (ECF No. 13) be granted, the petition for writ of habeas corpus be dismissed, and a certificate of appealability be denied.
II. REPORT
Petitioner, Walter Sherman Cowfer ("Cowfer" or "Petitioner") filed, pro se, the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is challenging his 1991 convictions in the Court of Common Pleas of Butler County, Pennsylvania. Respondents have filed a Motion to Dismiss (ECF No. 13), with brief in support (ECF No. 14), in which they argue that the petition is time barred and cannot be saved by equitable tolling. Petitioner filed a response (ECF No. 19) in opposition, in which he concedes that his petition is time barred but argues that equitable tolling applies. He asserts that he can overcome the one year statute of limitations pursuant to McQuiggin v. Perkins, -- U.S. --, 133 S.Ct. 1924 (2013), and the "actual innocence" exception.
A. Background and Procedural History
On January 31, 1991, Cowfer was convicted of murder in the first degree, robbery, theft, kidnapping, and criminal conspiracy. He was sentenced on June 17, 1991, to life imprisonment on the conviction of murder in the first degree, and imprisonment terms of three to six years on the robbery conviction, two to four years on the kidnapping conviction, and two to four years on the criminal conspiracy conviction, all to run concurrent with the life imprisonment sentence. Commonwealth v. Cowfer, Court of Common Pleas, Butler County, Criminal, No. CA 20816 of 1990 (April 16, 1999), Memorandum Opinion and Order of Court (ECF No. 12-5).
Cowfer filed a timely Notice of Appeal with the Superior Court of Pennsylvania on July 3, 1991. The Superior Court remanded the case to the trial court with the instruction to conduct an evidentiary hearing into the allegation of potential bias on the part of two of the Commonwealth's witnesses. Commonwealth v. Cowfer, 620 A.2d 536 (Pa. Super. Ct. 1991). (ECF No. 12-4). By Order dated August 17, 1993, the trial court, after conducting an evidentiary hearing, found there was no bias on the part of said witnesses, and denied Cowfer's request for a new trial. Cowfer did not take a direct appeal of this Order. Cowfer's judgment of sentence became final on September 16, 1993, thirty days after the trial court entered its Order of August 17, 1993, and the time for filing an appeal expired.
Two years later, Cowfer filed a pro se PCRA Petition on July 5, 1995. Counsel was appointed and an amended PCRA petition was filed on September 29, 1997. The amended PCRA petition was dismissed by order dated April 19, 1999. (ECF No. 12-5).
Cowfer's judgment of sentence became final before the effective date of the 1995 amendments to the PCRA, which enacted a one-year statute of limitations. Therefore, he was eligible for a one-year grace period until January 16, 1997 (one year from the January 16, 1996 effective date of the amendments).
Through counsel, Cowfer appealed the denial of his PCRA Petition to the Superior Court. On December 15, 1999, the Superior Court affirmed the decision of the PCRA court. (ECF No. 12-7). Commonwealth v. Cowfer, 750 A.2d 366 (Pa. Super. Ct. 1999) (unpublished memorandum). The time for filing a federal habeas petition was tolled until January 14, 2000, when the thirty day period to pursue a PAA with the Pennsylvania Supreme Court had expired.
Cowfer had until January 13, 2001, to file a habeas petition in this Court.
Six years later, on February 3, 2006, Cowfer filed a petition for relief in Superior Court seeking reinstatement of his direct appeal, which was promptly denied without prejudice to Cowfer's right to seek relief in the trial court. Superior Court Order, No. 34 EDM 2006, February 7, 2006. On March 13, 2006, Cowfer filed in the trial court a "Petition to Reinstate Appeal" contending that his attorney was ineffective for failing to appeal the Order of August 17, 1993, that had been entered by the trial court following remand. The trial court deemed the petition as a second request for post-conviction relief and by Order dated May 22, 2006, dismissed the petition as untimely on its face. (ECF No. 12-10).
Cowfer appealed and by Memorandum dated August 28, 2007, the Superior Court affirmed, agreeing that the second petition was time-barred. (ECF No. 12-12). Cowfer did not seek discretionary review in the Pennsylvania Supreme Court.
Almost nine years later, on November 17, 2015, Cowfer filed the instant habeas petition.
The Court has given Cowfer the benefit of the prisoner mailbox rule and has used November 17, 2015, the date the petition was signed and placed in the prison mail system, as the filing date. See also Rule 3(d) of the Rules Governing Section 2254 Cases in the United States District Courts.
Discussion
1. Timeliness of the Petition
AEDPA imposes a one-year limitations period for a state prisoner to file a federal habeas petition. Generally, the limitations period begins to run on the date the judgment of sentence becomes final. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final at the conclusion of direct review or upon the expiration of time for seeking such review. Id.; see Gonzales v. Thaler, 565 U.S. 134, 149-150 (2012). One of the following alternative start dates, however, may apply:
(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;28 U.S.C. § 2244(d)(1)(B)-(D). Furthermore, the AEDPA limitations period is subject to both statutory and equitable tolling. Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999).
(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.
Cowfer concedes that his petition is facially untimely. Accordingly, the petition should be dismissed unless Cowfer can establish that he is entitled to statutory or equitable tolling.
2. Statutory Tolling
Section 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction 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)(2). During Cowfer's first PCRA proceeding, the time for filing a habeas petition was tolled until January 14, 2000. Cowfer had until January 13, 2001, to file a habeas petition. Cowfer's second PCRA petition, filed on March 13, 2006, was dismissed as untimely. "A state postconviction petition rejected by the state court as untimely is not 'properly filed' within the meaning of § 2244(d)(2)." Allen v. Siebert, 552 U.S. 3, 5, (2007) (citing Pace v. DiGuglielmo, 544 U.S. 408 (2005)). Because the state courts rejected Petitioner's second PCRA petition as untimely, he was not entitled to statutory tolling.
3. Equitable Tolling of the AEDPA Statute of Limitations
A petitioner is entitled to equitable tolling only if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (emphasis added) (citation omitted); see also Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, (2005)). "This conjunctive standard requires showing both elements before we will permit tolling." Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original). Equitable tolling is warranted "'only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice'." Schlueter v. Varner, 384 F.3d 69, 75 (3d Cir. 2004) (quoting Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). As our appellate court has explained, "[t]here are no bright lines in determining whether equitable tolling is warranted in a given case." Ross, 712 F.3d at 799-780 (quoting Pabon v . Mahanoy , 654 F.3d 385, 399 (3d Cir. 2011)). The burden is on the petitioner to prove that he has been reasonably diligent in pursuing his rights; equitable tolling is not available where the late filing is due to the petitioner's excusable neglect. Holland, 560 U.S. at 651-52.
Equitable tolling is not warranted in this case because Cowfer fails to show how he has been diligently pursuing his rights or what extraordinary circumstances precluded a timely filing. See Holland, 560 U.S. at 649. Cowfer's judgment of sentence became final on September 16, 1993; the decision on his first and only timely PCRA petition became final on January 14, 2000. He had until January 13, 2001, to file a timely federal habeas petition. Other than a bald assertion that he has "diligently attempted to have his issues(s) resolved in state court but was hindered by appellate and PCRA counsel," Pet. at 16-17, Cowfer offers no credible explanation as to the delay in filing the instant petition.
Because Petitioner has failed to show that he exercised reasonable diligence in pursuing his rights, the Court finds no basis to hold an evidentiary hearing on this issue. See LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (citing Robinson v. Johnson, 313 F.3d 128, 143 (3d Cir. 2002)) (explaining that a "hearing on availability of equitable tolling [is] not warranted where petitioner failed to show that he exercised reasonable diligence in attempting to file a timely petition").
4. Fundamental Miscarriage of Justice
Finally, Cowfer is not entitled to the narrow fundamental miscarriage of justice exception to AEDPA's limitations period. "[T]he fundamental miscarriage of justice exception applies only to cases of actual innocence." Coleman v. Greene, 845 F.3d 73, 76 (3d Cir. 2017) (citing McQuiggin v. Perkins, -- U.S. --, 133 S.Ct. 1924 (2013)). An actual innocence claim must be 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). In our circuit, evidence is "new" under the Schlup standard only if it was not available at the time or trial and could not have been discovered earlier through the exercise of due diligence, except in situations where that evidence was not discovered due to the ineffectiveness of trial counsel. See Houck v. Stickman, 625 F.3d 88, 93-94 (3d Cir. 2010).
Cowfer does not argue that his habeas petition presents a claim of factual innocence. Rather, he argues that during trial the prosecutor "knowingly elicited perjured testimony" and that the Commonwealth withheld favorable information in violation of Brady v. Maryland, 373 U.S. 82 (1963). Pet's Resp. at 7-9. He further argues that:
There was and is a conflict of interest that has so undermined the truth determining process that no real adjudication of his issues or Rights has resulted, namely: former trial attorney Randa B. Clark became an Assistant District Attorney in Butler County following the trial and through-out Petitioners' evidentiary hearings, and eventually became a sitting judge in Butler County. Also through-out the process, attorney Patricia McLean, for co-defendant Margaret Zawodniak, became Assistant District Attorney for Butler County, and attorney Richard E. Goldinger, for co-defendant Micahel R. Sopo, became the District Attorney for Butler County and the prosecuting attorney became a sitting judge in Butler County. Wherefore, Petitioner has been consistently denied fair and full hearings to develop the facts and the record.Resp. at 3 (ECF No. 19). Cowfer offers no explanation of why it has taken almost a decade to uncover this "new evidence." Further, even assuming his arguments to be true, "the Supreme Court has emphasized that '[w]ithout any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim'." Coleman, 845 F.3d at 76 (citing Schlup v. Delo, 513 U.S. 298, 316 (1995)).
Cowfer presents no argument or new reliable evidence of innocence which would indicate that " 'no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt'." Id. (quoting McQuiggin, 133 S. Ct. at 1928). Thus, the Court recommends that the motion to dismiss be granted.
C. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." "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 v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, jurists of reason would not find it debatable that the instant petition is time barred, and neither statutory nor equitable tolling applies.
III. Conclusion
For all of the above reasons, it is respectfully recommended that the motion to dismiss be granted, the petition for writ of habeas corpus be dismissed, and a certificate of appealability be denied.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner, because he is a non-electronically registered party, may file objections to this Report and Recommendation by March 27, 2017, and Respondents, because they are electronically registered parties, may file objections by March 24, 2017. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). DATED: March 10, 2017
BY THE COURT:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge cc: WALTER SHERMAN COWFER
BN-3414
SCI Mahanoy
301 Morea Road
Frackville, PA 17932
(via First Class U.S. Mail)
Jennifer A. Peterson
Office of the Pennsylvania Attorney General
(via ECF electronic notification)