Opinion
Civil Action 09-cv-05693-JMG
04-25-2024
ROBERT DAVIS, Petitioner, v. RANDALL SEARS, et al., Respondents.
REPORT AND RECOMMENDATION
RICHARD A. LLORET U.S. MAGISTRATE JUDGE.
Following a bench trial, Petitioner Robert Davis (the “Petitioner”) was found guilty of attempted murder and other convictions related to an incident occurring more than twenty years ago where he fired multiple shots at a man named Robert Venable on a public street. Mr. Davis has filed with this court a Petition for Writ of Habeas Corpus (the “Petition”) under 28 U.S.C. § 2254. Doc. No. 29. The Petition has been referred to me for a report and recommendation pursuant to 28 U.S.C. § 2254 (“A magistrate judge may perform the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636.”). See Doc. No. 38. Because Mr. Davis' request is an unauthorized second or successive habeas petition under 28 U.S.C. § 2244(b), I recommend that it be dismissed, with prejudice.
Unless otherwise indicated, all references to the electronically docketed record will be cited as “Doc. No.__ at__.”
FACTUAL & PROCEDURAL BACKGROUND
A. Mr. Davis' State Court Litigation
The Pennsylvania Superior Court recounted the facts of the case as follows:
This case stems from a sidewalk confrontation between [the Petitioner] and the victim, Mr. Robert Venable, during which [the Petitioner] shot Mr. Venable multiple times. Mr. Venable suffered injuries to his head, chest, and legs. Although critically injured, Mr. Venable survived and identified [the Petitioner] as his assailant.Commw. v. Davis, No. 2474 EDA 2007 (Pa. Super. Sept. 18, 2008).
The Honorable United States Magistrate Judge Linda K. Caracappa summarized the lengthy procedural history of Mr. Davis' state court litigation in an earlier report and recommendation, noting:
On July 25, 2001, following a bench trial before the Honorable William J. Mazzola, petitioner was convicted of attempted murder, aggravated assault, simple assault, possessing instrument of crime, terroristic threats, and two counts of violating the Uniform Firearms Act. Specifically, petitioner was convicted of shooting Robert Venable eight times, after a sidewalk confrontation. On October 9, 2001, petitioner was sentenced to an aggregate prison term of twelve (12) to twenty-five (25) years imprisonment.
Petitioner did not file a direct appeal.
On June 21, 2002, petitioner filed a pro se petition for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq, seeking reinstatement of petitioner's direct appeal right nunc pro tunc. On August 19, 2002, the PCRA court denied the petition as untimely. However, on July 30, 2003, the Superior Court reversed and remanded, finding petitioner's PCRA petition was timely. On September 9, 2004, the PCRA court granted reinstatement of petitioner's direct appeal rights nunc pro tunc.
Petitioner filed a direct appeal. The Superior Court affirmed the judgment of sentence, on March 22, 2006. On July 20, 2006, the Pennsylvania Supreme Court denied petitioner's request for review.
On June 6, 2006, August 24, 2006, May 18, 2007, and August 9, 2007, petitioner filed several pro se PCRA documents seeking collateral relief. On September 18, 2007, the PCRA court dismissed all of the documents as untimely. On September 18, 2008, the Superior Court again reversed and remanded, finding the PCRA court's timeliness calculation was incorrect.On September 24, 2008 and October 15, 2008, petitioner filed supplements to amend his PCRA petition. Counsel was appointed to represent petitioner. Counsel subsequently filed a no merit letter pursuant to Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (Pa. Super. 1988), on August 26, 2009. On either May 18, 2010 or June 3, 2010, the PCRA court dismissed the petition without a hearing. Petitioner failed to file a timely appeal.
On July 14, 2010, petitioner filed another PCRA and requested leave to file an appeal nunc pro tunc, to the June 3, 2010 PCRA court denial. On August 3, 2010, the PCRA court denied relief. On August 18, 2010, petitioner appealed to Superior Court. On October 24, 2011, the Superior Court denied petitioner's appeal.See Davis v. Sears, No. 12-4657, 2013 WL 592289, at *1-2 (E.D. Pa. Jan. 11, 2013), report and recommendation adopted, No. 12-4657, 2013 WL 592188 (E.D. Pa. Feb. 15, 2013).
“Petitioner was sentenced on October 9, 2001. Petitioner then had thirty days, until November 8, 2001, to file a direct appeal in the Superior Court. Petitioner did not file a direct appeal by November 9, 2001. Petitioner then had one year from that date, until November 9, 2002, to file a timely PCRA petition. Petitioner filed the PCRA petition on June 21, 2002, petitioner had three months remaining in the one year statute of limitations, and thus petitioner's PCRA petition was timely.” Davis v. Sears, No. 12-4657, 2013 WL 592289, at *1 n. 1 (E.D. Pa. Jan. 11, 2013), report and recommendation adopted, No. 12-4657, 2013 WL 592188 (E.D. Pa. Feb. 15, 2013).
“The Superior Court explained that petitioner's judgment of sentence became final on October 18, 2006, ninety days after the Supreme Court of Pennsylvania denied petitioner's petition for allowance of appeal, when the time period for seeking a writ of certiorari for the United States Supreme Court had run. Petitioner then had until October 18, 2007, to file a timely PCRA petition. The Superior Court explained that, because petitioner's June and August 2006 documents were filed prior to the judgment of sentence becoming final on October 18, 2006, they were untimely. However, the May and August 2007 petitions were timely filed, prior to the October 18, 2007 deadline.” Id. at *1 n. 2.
“In the March 17, 2011 opinion, the PCRA court stated that it dismissed the PCRA petition on May 18, 2010. However, the record shows that, on June 3, 2010, the PCRA court issued a docket entry stating, “Order Granting Dismissal of PCRA by DA; Petition Denied.” Even if the court uses the latter date, June 3, 2010, petitioner's PCRA appeal to the Superior Court was not filed until July 14, 2010, 11 days late, and was thus still untimely.” Id. at *1 n. 3.
B. Mr. Davis' Federal Habeas Corpus Proceedings
Mr. Davis opened this matter on November 24, 2009 by filing a “Motion for Abeyance Pursuant to 28 U.S.C. § 2254.” See Doc. No. 1. On December 7, 2009, United States District Judge John P. Fullman denied Mr. Davis' motion and instructed him to file a habeas petition in compliance with 28 U.S.C. § 2254. Doc. No. 2. Mr. Davis did not file a compliant habeas petition at that time.
The docket indicates that the petition was filed on November 30, 2009. See Doc. No. 1. Where, as here, a prisoner files a pro se petition, the prisoner mailbox rule applies, and the petition is deemed filed on the date the prisoner delivers the petition to prison officials for mailing. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). Mr. Davis' petition was signed on November 24, 2009. I therefore will treat November 24, 2009 as the date of filing.
In January 2013, while his 2012 habeas petition was still pending, Mr. Davis filed several items under this docket number including a Motion for Permission to Proceed in the District Court And / Or On Abeyance In Forma Pauperis (Doc. No. 3) and another Motion for Abeyance Pursuant to 28 U.S.C. § 2254 (Doc. No. 4). At that time, this matter was reassigned to the Honorable Eduard C. Robreno. See Doc. No. 5.
More than two years later, on August 8, 2012, Mr. Davis filed an initial petition for writ of habeas corpus under E.D. Pa docket number 12-cv-4657. On January 11, 2013, Judge Caracappa issued a Report and Recommendation recommending that Mr. Davis' habeas petition be dismissed as untimely. Davis v. Sears, No. 12-4657, 2013 WL 592289, at *2-3 (E.D. Pa. Jan. 11, 2013). On February 15, 2013, the Honorable District Judge Mary A. McLaughlin adopted Judge Caracappa's Report and Recommendation and dismissed Mr. Davis' initial habeas petition with prejudice. Davis v. Sears, No. 12-4657, 2013 WL 592188 (E.D. Pa. Feb. 15, 2013).
Petitioner signed his petition on August 8, 2012. I will presume that he delivered it to authorities for filing on that date.
On August 29, 2022, nearly a decade later, Mr. Davis filed a Motion for Relief from Final Judgment Pursuant to Federal Rule of Civil Procedure 60(b)(6) (the “Rule 60(b)(6) Motion”), under E.D. Pa docket number 12-4657, which United States District Judge Joel H. Slomsky denied on November 2, 2022. See E.D. Pa Docket 12-cv-4657 at Doc. No. 44. Mr. Davis appealed. On March 20, 2023, the Third Circuit dismissed Mr. Davis' appeal for failure to file within the time requirements of the Federal Rules of Appellate Procedure. See E.D. Pa Docket 12-cv-4657 at Doc. No. 71.
In February 2023, Mr. Davis filed several items in this case, including a notice of appeal with a motion for certificate of appealability. See Doc. Nos. 28, 32. On March 28, 2023, Davis filed an amended petition for writ of habeas corpus. See Doc. No. 29. On April 11, 2023, United States District Judge Eduardo C. Robreno stayed the matter pending resolution of Mr. Davis' appeal, noting:
Mr. Davis indicated that the Petition was placed in the prison mailing system on March 28, 2023. See Doc. No. 29 at 22.
After filing an appeal of the Court's March 16, 2023 Order (ECF No. 26) instructing Petitioner to file a habeas petition pursuant to § 2254, Petitioner complied with the Court's Order. Although it appears that the appeal is now moot given that Petitioner has filed an “amended” habeas petition, it also appears that the Court is without jurisdiction to rule on the merits while the appeal is pending in the Court of Appeals. Once the case is remanded to the district court, the Court will proceed to consider the merits of the amended “amended” habeas petition.See Doc. No. 33 at n. 1.
After the Third Circuit dismissed Mr. Davis' appeal of Judge Robreno's Order of March 16, 2023 (Doc. No. 34), Judge Robreno denied as moot Mr. Davis' affidavit of poverty and did not issue a certificate of appealability for Mr. Davis' appeal of the Order instructing him to file his Petition in compliance with 28 U.S.C. § 2254. Doc. No. 35. On July 27, 2023, this matter was referred to me for a report and recommendation. See Doc. No. 38.
The Respondents confuse the “appeal” referenced in Judge Robreno's April 11, 2023 Order (Doc. No. 33) with Mr. Davis' appeal of his 2012 habeas petition. Resp'ts' Br. at 6. Judge Robreno is referring to Mr. Davis' appeal of the March 16, 2023 Order. See Doc. No. 33 n. 1.
DISCUSSION
A. Mr. Davis has not obtained the requisite authorization from the Third Circuit to file this subsequent petition.
Before a habeas petitioner may file a second or successive habeas petition, he must “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). “A petitioner's failure to seek such authorization from the appropriate appellate court before filing a second or successive habeas petition ‘acts as a jurisdictional bar.'” Blystone v. Horn, 664 F.3d 397, 412 (3d Cir. 2011) (quoting U.S. v. Key, 205 F.3d 773, 774 (5th Cir.2000)). The Respondents argue that Mr. Davis' Petition is “an unauthorized second or successive petition and may be dismissed on that basis[.]” Doc. No. 86 at 11 n. 5 (“Resp'ts' Br.”) (citing 28 U.S.C. § 2244(b)). I agree and recommend that the Petition be dismissed.
Mr. Davis has opened two cases in the Eastern District of Pennsylvania challenging the same underlying state court criminal conviction: No. 12-cv-4657 and No. 09-cv-5693. This case, No. 09-cv-5693, was opened in November 2009 after Mr. Davis field a motion for abeyance. See Doc. No. 1. While Judge Fullman ordered Mr. Davis to file a proper habeas petition in December 2009, Mr. Davis did make any filings under this case number until January 2013. See Doc. No. 3. In the interim, on August 8, 2012, Mr. Davis filed a habeas petition under a different civil action number: No. 12-cv-4657. It was not until the Third Circuit dismissed the Rule 60(b)(6) Motion in the No. 12-cv-4657 matter for lack of jurisdiction on March 20, 2023 that Mr. Davis filed a compliant habeas petition in this matter. See Doc. No. 29. Because both Mr. Davis' Petition and his petition of August 8, 2012 relate to the same state court conviction and the Petition was not filed until after the earlier petition and related Rule 60(b)(6) Motion were dismissed, the Petition is a second or successive habeas petition under 28 U.S.C. § 2244(b).
Mr. Davis was therefore required under 28 U.S.C. § 2244(b)(3)(A) to seek authorization from the Third Circuit to file this Petition. Because Mr. Davis failed to request such authorization, I recommend the Petition be dismissed for lack of jurisdiction.
B. The Petition is untimely.
Even if this court had jurisdiction to review the Petition, it is untimely by a matter of several years, and so would be dismissed on that basis. A habeas petition must be filed in a timely manner. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) created a one-year time limit for filing a habeas corpus petition. See 28 U.S.C. § 2244(d); see Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001).
Mr. Davis filed a timely direct appeal on March 22, 2006. Mr. Davis' judgment of sentence became final on October 18, 2006, ninety days after the Pennsylvania Supreme Court denied his request for review on July 20, 2006. The AEDPA's one-year statute of limitations may be tolled during the time a properly filed PCRA petition is pending in the state courts. See 28 U.S.C. § 2244(d)(2) (providing that the time during which a “properly filed” petition for collateral relief is pending is not counted toward the one-year statute of limitations). Mr. Davis filed a timely PCRA petition on May 18, 2007, 212 days into the habeas one-year limitation period. The PCRA court dismissed Mr. Davis' petition on June 3, 2010, and Mr. Davis failed to file a timely appeal within thirty days. Because the statute of limitation period was tolled until July 3, 2010, Mr. Davis had until December 3, 2010 to file a timely habeas petition.
Mr. Davis filed the Petition on March 2o, 2023, which is 4,490 days after the statute of limitations expired on December 3, 2010. In an affidavit signed on February 14, 2023, Mr. Davis alleged that his case was subject to statutory tolling under 28 U.S.C. § 2244(d)(1)(C) because of a change of law under McQuiggin v. Perkins, 569 U.S. 383 (2013). See Doc. No. 17. While Mr. Davis filed this affidavit prior to filing his Petition, I agree with the Respondents that, even if the statutory period was tolled until the day of the McQuiggin decision (May 28, 2013), it would still have been untimely by 3,583 days. See Resp'ts' Br. at 9. As such, the Petition is untimely and should be dismissed unless there are grounds for equitable tolling.
The AEDPA's statute of limitations may be subject to equitable tolling if a petitioner 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, 648-49 (2010) (quoting Pace v. Diguglielmo, 544 U.S. 408, 413 (2005). “[E]quitable tolling is appropriate when principles of equity would make the rigid application of a limitation period unfair, but . . . a court should be sparing in its use of the doctrine.” Ross v. Varano, 712 F.3d 784, 799 (3d Circ. 2013).
Mr. Davis has not shown that he has been pursuing his rights diligently. Mr. Davis was instructed by Judge Fullman on December 7, 2009 to correct his habeas petition, which he failed to do. After failing to timely appeal the denial of his PCRA petition by July 3, 2010, Mr. Davis waited until March 20, 2023 (4,643 days or twelve years and eight months) to file a habeas petition that complied with federal law. Mr. Davis provides no reason for his delay. Under these circumstances, I cannot find that Mr. Davis has diligently pursued his rights. Nor has Mr. Davis raised any extraordinary circumstances that excuse his delay. As such, Mr. Davis has not established a basis for equitable tolling.
RECOMMENDATION
Petitioner does not raise new constitutional grounds, nor does he cite to any newly discovered evidence, such that the Third Circuit would have had some basis upon which to even consider granting him leave to file a second petition. See 28 U.S.C. § 2244(b)(2)(A), (B). Even if this were his first petition, and therefore not otherwise jurisdictionally barred, he has far exceeded the time allowed to seek relief.
I recommend that Mr. Davis' Petition be dismissed with prejudice. I further recommend that no certificate of appealability issue, under 28 U.S.C. § 2253(c)(1)(A), because Mr. Davis has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Mr. Davis may file objections to this Report and Recommendation within fourteen days after being served with a copy thereof. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).