Opinion
Civil Action No. 17 - 1348
03-31-2020
ERIC LEON DENNIS, Petitioner, v. JOHN WETZEL, Secretary, Pennsylvania Department of Corrections, STEPHEN ZAPPALA, District Attorney of Allegheny County, and JOSHUA SHAPIRO, Attorney General of Pennsylvania, Respondents.
District Judge Robert J. Colville
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons set forth herein, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) be dismissed as untimely and that a Certificate of Appealability be denied.
II. REPORT
A. Procedural History
On June 24, 2010, Petitioner Eric Leon Dennis ("Petitioner") was charged by Criminal Information in the Court of Common Pleas of Allegheny County, Criminal Division, with one count each of criminal homicide, 18 Pa. C.S.A. § 2501(a), and endangering the welfare of a child, 18 Pa. C.S.A. § 4303. (Resp't Ex. 1, ECF No. 6-1, pp.1-11). See also Commonwealth v. Dennis, CP-02-CR-7278-2010 (Allegheny Cty. Ct. of Comm. Pleas). On October 31, 2011, Petitioner, represented by Robert Foreman, Esquire ("Attorney Foreman"), proceeded to jury selection. After five jurors had been selected, Petitioner indicated that he no longer wished to be tried by a jury and instead wanted to proceed with a bench trial. That afternoon, Petitioner, as part of a colloquy before the Honorable John A. Zottola, executed a waiver of his right to a trial by jury. However, the following day, and just prior to witnesses being called at his bench trial before the Honorable Beth A. Lazzara, Petitioner stated that he changed his mind and again wished to be tried by a jury. Judge Lazzara denied Petitioner's request and the bench trial proceeded as scheduled. At the conclusion, Judge Lazzara found Petitioner guilty of third-degree murder and endangering the welfare of a child. On February 1, 2012, Judge Lazzara sentenced Petitioner to a term of twenty (20) to forty (40) years of imprisonment for third-degree murder and to a consecutive two (2) to four (4) year term of imprisonment for endangering the welfare of a child. The trial court denied post-sentence motions.
On March 1, 2012, Petitioner, through Victoria Vidt, Esquire ("Attorney Vidt"), filed a Notice of Appeal, which was docketed at No. 364 WDA 2012. (Resp't Ex. 4, ECF No. 6-1, pp.19-31; Resp't Ex. 5, ECF No. 6-1, pp.32-35.) On July 22, 2013, the Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence. (Resp't Ex. 10, ECF No. 6-3, pp.31-42.) No petition for allowance of appeal was filed with the Supreme Court of Pennsylvania.
On September 12, 2013, Petitioner filed a pro se petition for relief pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"). (Resp't Ex. 11, ECF No. 6-3, pp.44-55.) Judge Lazzara subsequently appointed Scott Coffey, Esquire ("Attorney Coffey") to represent Petitioner (Resp't Ex. 12, ECF No. 6-4, p.1), and, on January 13, 2014, Attorney Coffey filed an amended PCRA petition on Petitioner's behalf (Resp't Ex. 13, ECF No. 6-4, pp.2-15). Attorney Coffey filed a second amended PCRA petition on behalf of Petitioner on February 26, 2014. (Resp't Ex. 15, ECF No. 6-4, pp.44-47.) On October 10, 2014, Judge Lazzara, acting as the PCRA court, dismissed the PCRA petition without a hearing. (Resp't Ex. 17, ECF No. 6-4, p.49.) On October 21, 2014, Petitioner, through Attorney Coffey, filed a Notice of Appeal to the Superior Court, which was docketed at No. 1753 WDA 2014. (Resp't Ex. 18, ECF No. 6-4, pp.50-54; Resp't Ex. 19, ECF No. 6-5, pp.1-4.) On June 11, 2015, the Superior Court affirmed the PCRA court's dismissal of the PCRA petition. (Resp't Ex. 23, ECF No. 6-6, pp.1-13; Resp't Ex. 24, ECF No. 6-6, pp.14-23.) That same day, Attorney Coffey filed a Petition for Allowance of Appeal ("PAA") in the Supreme Court of Pennsylvania, which was docketed at No. 227 WAL 2015. (Resp't Ex. 25, ECF No. 6-6, pp.24-68; Resp't Ex. 26, ECF No. 6-6, pp.69-71.) The PAA was denied on December 16, 2015. (Resp't Ex. 27, ECF No. 6-6, p.72.)
Petitioner, through Scott Westcott, Esquire, filed the within Petition for Writ of Habeas Corpus ("Petition") on October 18, 2017. (ECF No. 1.) On May 29, 2018, Respondents filed their Answer to the Petition wherein they argue, inter alia, that the Petition should be dismissed as untimely. (ECF No. 6.)
Counsel moved and was granted permission to withdraw in October 2018. See ECF Nos. 9-10. As a result, Petitioner is now proceeding in this action pro se.
B. Petitioner's Claims
Petitioner first claims that he was denied the effective assistance of counsel at every stage of his criminal proceedings - trial, direct appeal and post-conviction.
In support of his claim that trial counsel, Attorney Foreman, was ineffective, Petitioner states that during the four-month period between entering his appearance and the commencement of trial, Attorney Foreman visited Petitioner on only one occasion, which occurred two days prior to trial. He states that Attorney Foreman never interviewed Petitioner, nor did he conduct, or direct any other person to conduct, an investigation into the case, such as visiting the crime scene and interviewing witnesses. He also states that Attorney Foreman failed to investigate Petitioner's cognitive ability, which he claims "may not be quite evident" after a single one to two hour visit but is "apparent and easily recognizable" after a lengthy interview, especially over a course of three or four meetings. Evidence of said cognitive impairment includes Petitioner's third grade reading capacity, receipt of social security disability benefits since childhood because of his learning disabilities, and participation in special education classes as a child. Petitioner maintains that his cognitive impairment gives rise to certain issues, including, but not limited to, whether he knowingly and intelligently waived his right to counsel during his interviews with detectives, whether Attorney Foreman was ineffective for failing to file a motion to appoint a psychologist or behavioral specialist to assess Petitioner, whether Attorney Foreman was ineffective for failing to file motions to suppress Petitioner's statements given to detectives based on his failure to comprehend the police interrogation or fully understand his right to waive counsel, whether the trial judge could appreciate Petitioner's confusion regarding the selection of the jury because she was unaware of Petitioner's cognitive impairment, and whether Attorney Foreman was ineffective for failing to elicit testimony or evidence relating to an alternative theory on the manner of death (falling down the steep stairs in the house) and retain a medical expert or request that the trial court provide a medical expert to provide testimony that would refute the Commonwealth's theory as to the manner of death.
In support of his claim that direct appeal counsel, Attorney Vidt, was ineffective, Petitioner states that she, too, never met with him in order to ascertain his cognitive ability and without meeting with him she could not adequately represent him during the appellate process. He also states that Attorney Vidt was ineffective for failing to raise on appeal a claim challenging the trial court's denial of Petitioner's request for a jury trial.
In support of his claim that PCRA counsel, Attorney Coffey, was ineffective, Petitioner states that Coffey never met with him in order to ascertain his cognitive ability. He also states that had Attorney Coffey met with Petitioner, he would have recognized Petitioner's cognitive impairment and raised the ineffective assistance of trial counsel claims mentioned above relating to Attorney Foreman's failure to adequately defend Petitioner.
Petitioner's second claim is that he was denied his constitutional right to a jury trial when the trial judge denied his request prior to the commencement of the bench trial.
C. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and it provides:
(1) 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 that 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 facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The 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 section.28 U.S.C. § 2244(d).
The statute of limitations set out in § 2244(d)(1) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), cert denied, 543 U.S. 1067 (2005). In analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the "trigger date" for the one-year limitations period pursuant to section 2244(d)(1). Second, the court must determine whether any "properly filed" applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to section 2244(d)(2). Third, the court must determine whether any equitable tolling should be applied on the facts presented or whether the petitioner has satisfied the fundamental miscarriage of justice exception to excuse the untimely filing of his/her petition.
Here, the "trigger date" for all of Petitioner's claims in this case is the date that his judgment of sentence became final by the conclusion of direct review. In this case, Petitioner's judgment of sentence was affirmed on direct appeal on July 22, 2013, and he did not seek further review by way of a petition for allowance of appeal filed with the Pennsylvania Supreme Court. Therefore, Petitioner's judgment of sentence became final on August 21, 2013, when the time for filing said petition for allowance of appeal expired, and, absent any tolling, Petitioner had one year from that date to file a timely petition for writ of habeas corpus in this Court. Since the Petition here was not filed until October 18, 2017, the Court will next consider whether any portion of the one-year limitations period was tolled.
Petitioner's claims do not involve newly enunciated constitutional rights, the facts supporting his claims are not newly discovered and he does not argue that a state-created impediment prevented him from filing his application for habeas relief in a timely manner. Therefore, the "trigger date" for his claims is provided for in § 2244(d)(1)(A).
See Pa.R.App. P. 1113(a) (petition for allowance of appeal shall be filed within thirty days from the entry of the Order of the Superior Court sought to be reviewed); see also Harris v. Vaughn, 129 F. App'x 684, 685 (3d Cir. 2005) (where petitioner did not file an allocatur petition in the Pennsylvania Supreme Court, his judgment of conviction became final thirty days after the Superior Court affirmed his conviction) and Lopez v. Rozum, No. 04-5908, 2005 WL 1322515, at *3 (E.D. Pa., June 1, 2005) (petitioner's judgment of conviction became final when the time for seeking allowance of appeal in the Supreme Court of Pennsylvania on direct appeal expired).
As to the second inquiry, the one-year limitations period was tolled during the pendency of Petitioner's "properly filed" state post-conviction proceedings pursuant to section 2244(d)(2). Petitioner filed his pro se PCRA petition on September 12, 2013, which was twenty-one (21) days after his judgment of sentence became final. While those twenty-one (21) days were counted against Petitioner's one-year statute of limitations period, the pro se PCRA petition served to toll the statute of limitations until those proceeding ceased to be pending, which occurred on December 16, 2015, the day the Pennsylvania Supreme Court denied the petition for allowance of appeal. At that time, Petitioner had 344 days of his one-year statute of limitations period remaining (365-21=344) in which to file a timely petition for writ of habeas corpus in this Court, which would have expired on November 24, 2016. The Petition in this case, however, was not filed until October 18, 2017, about eleven months later. Accordingly, it is untimely.
Having failed to meet AEDPA's one-year statute of limitations, the Petition can only be saved by application of the doctrine of equitable tolling or the Supreme Court's recognized fundamental miscarriage of justice exception. While Petitioner acknowledges that the Petition was untimely filed he contends that the limitations period should be equitably tolled due to Petitioner's cognitive impairment, which he maintains qualifies as "extraordinary circumstances". In this regard, the United States Supreme Court has held that AEDPA's statute-of-limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled to equitable tolling only if he shows that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The diligence that is required is "reasonable diligence," and while eschewing a "mechanical rule" for determining extraordinary circumstances, the Court pointed to a "flexibl[e]," "case-by-case" approach, drawing "upon decisions made in other similar cases for guidance." Id. at 649-50. A court should "exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Id.
Relevant for present purposes, the Third Circuit Court of Appeals has recognized that mental incompetence is not a per se reason to toll a statute of limitations, but tolling may be appropriate if "the alleged mental incompetence . . . somehow . . . affected the petitioner's ability to file" a timely action. Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), overruled in part by Carey v. Saffold, 536 U.S. 214 (2002); see also United States v. Harris, 268 F.Supp.2d 500, 506 (E.D. Pa. 2003) (noting that equitable tolling requires "an inability to pursue one's legal rights" and "a nexus between the petitioner's mental condition and inability to file a timely petition"; determining that "a mental condition that burdens but does not prevent a prisoner from filing a timely petition does not constitute 'extraordinary circumstances' justifying equitable tolling"). The petitioner bears the burden of establishing his mental incompetence and how it affected his ability to file a timely habeas action. See Champney, 469 F. App'x at 117 (citing Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010) (placing the burden on the petitioner to demonstrate with particularized description the causal relationship between the mental deficiency and failure to timely file the petition)).
When approaching the "extraordinary circumstances" prong of the equitable tolling analysis in terms of mental illness, a non-exclusive list of factors to consider includes:
(1) [whether] the petitioner [was] adjudicated incompetent and if so, when did the adjudication occur in relation to the habeas statutory period; (2) [whether] the petitioner [was] institutionalized for his mental impairment; (3) [whether] the petitioner handled or assisted in other legal matters which required action during the federal limitations period; and (4) [whether] the petitioner supported [his] allegations of impairment with extrinsic evidence such as evaluations or medicines.Champney v. Secretary Pennsylvania Dept. of Corrections, 469 F. App'x 113, 118 (3d Cir. Mar. 21, 2012) (quoting Passmore v. Pennsylvania, No. 08-705, 2008 WL 2518108, at *3 (M.D. Pa. June 19, 2008).
Despite asserting that Petitioner cannot fully understand the significance of AEDPA's one-year statute of limitations because he suffers from general cognitive impairment and that evidence of said impairment is supported by Petitioner's third grade reading capacity, placement in special education classes and receipt of social security disability benefits because of his learning disabilities, Petitioner did not put forth any particular evidence to show that his mental disability, or cognitive impairment, affected his ability to file, or prevented him from asserting his rights, in a timely filed petition for writ of habeas corpus. Furthermore, the fact that Petitioner was able to file a timely pro se PCRA petition in state court belies any such claim Petitioner could make that his cognitive impairment preventing him from filing a timely petition in this Court, especially because they are not recent cognitive impairments but cognitive impairments from which Petitioner is alleged to have suffered since childhood. See, e.g., Champney, 469 F. App'x at 117 ("[W]e find Champney's history of timely filing documents in court sufficient to negate the premise that his mental status constituted an 'extraordinary circumstance' that impaired his ability to timely file the instant Petition.") As Petitioner has not met his burden of showing how his cognitive impairment rendered him incapable of filing a timely petition for writ of habeas corpus, the undersigned finds that it does not constitute an extraordinary circumstance warranting equitable tolling. Thus, it is recommended that the Petition be dismissed as untimely.
There is no evidence in this case that Petitioner was adjudicated incompetent or institutionalized for a mental impairment during the time period following his conviction, during the state court appeals process, or during the habeas statutory period. In fact Petitioner, who is represented by counsel, did not provide this Court with any actual evidence or documentation supporting the claim that he suffers from the cognitive impairment as alleged.
D. Certificate of Appealability
AEDPA provides that an appeal may not be taken to the court of appeals from a final order in a § 2254 proceeding unless a judge issues a certificate of appealability on the ground that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The United States Supreme Court held in Slack v. McDaniel 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." 529 U.S. 473, 484 (2000). Petitioner has not made the requisite showing in these circumstances. Accordingly, a certificate of appealability should be denied.
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) be dismissed as untimely and that a Certificate of Appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: March 31, 2020.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Eric Leon Dennis
KJ-8881
SCI Fayette
48 Overlook Drive
LaBelle, PA 15450
Counsel of record
(Via CM/ECF electronic mail)