Opinion
Civil Action 22-cv-3501-JLS
02-29-2024
ANDRE EMMITT FIORENTINO Petitioner, v. SUPERINTENDENT OF SCI HOUTZDALE, et al., Respondents.
REPORT AND RECOMMENDATION
RICHARD A. LLORET U.S. MAGISTRATE JUDGE
Before me is Petitioner Andre Emmitt Fiorentino's (“Petitioner's” or “Fiorentino's”) Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (the “Petition”). Doc. No. 2. Following a jury trial, Mr. Fiorentino was found guilty of various assault and firearm charges. See Docket Number: CP-15-CR-0000309-2014 (“Chester County Docket”). Because Mr. Fiorentino's Petition is untimely filed and does not meet any of the timeliness exceptions, I recommend that it be dismissed.
Unless otherwise indicated, all references to the electronically docketed record will be cited as “Doc. No. at .”
FACTUAL AND PROCEDURAL BACKGROUND
The Pennsylvania Superior Court recounted the facts of the case as follows:
In the early morning hours of November 23, 2013, [Fiorentino] exited his mother's home along Merchant Street in Coatesville, Chester County. At that time, Coatesville police officers Joseph Thompson and Ryan Corcoran were patrolling Merchant Street in a marked police vehicle. Officer Thompson observed [Fiorentino] crouching near a parked car and decided to investigate further. As Officer Thompson approached [Fiorentino] he requested identification. [Fiorentino] turned away from the officer and attempted to flee. A short pursuit ensued.
While chasing [Fiorentino], Officer Thompson ordered him to stop and threatened to tase him. [Fiorentino] did not heed the officer's warning, but rather, turned and fired a weapon at Officer Thompson. Both officers immediately drew their service weapons and returned fire, striking [Fiorentino] several times in the abdomen and legs. [Fiorentino] dropped his weapon as he collapsed to the ground. The officers approached [Fiorentino], kicked the firearm out of his reach, and attempted to secure the area as people from the neighborhood began amassing in the street.
[Fiorentino's] injuries were treated at the scene by emergency medical technicians who arrived shortly thereafter. [Fiorentino] was then transported to Paoli Memorial Hospital's trauma ward. As they extracted [Fiorentino] from the ambulance, the paramedics moved a pile of his clothing, which had been removed during treatment of [Fiorentino's] injuries. A second firearm tumbled from the bundle. That firearm was taken into custody by an officer who had accompanied [Fiorentino] to the hospital.
Based on the foregoing, [Fiorentino's] was charged with the [assault and firearms] offenses as well as two counts of attempted murder. [Fiorentino] filed a motion to suppress incriminating statements made by him to Detective Joseph Nangle while hospitalized. He argued that Detective Nangle violated his rights under the 5th and 6th Amendments of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution by engaging him in conversation in the absence of counsel after he had been formally arraigned and without the benefit of Miranda warnings. After a hearing on the matter, the trial court denied [Fiorentino's] motion ....
The Commonwealth filed a motion in limine seeking to exclude evidence of, inter alia, prior altercations wherein Officer Thompson discharged his service firearm. Subsequently, [Fiorentino] served a subpoena on the Pennsylvania State Police (“PSP”) requesting access to Officer Thompson's employment records, including investigation reports created by the agency's Internal Affairs Division. The PSP filed a protective order seeking to preclude from discovery all department records.
By order of March 6, 2015, the court directed PSP to turn over documents pertaining to a single prior incident involving Officer Thompson, but did not determine the admissibility of those documents at that time. The court denied discovery of the remaining documents. By order dated June 8, 2015, the court granted the Commonwealth's motion to preclude improper character evidence of Officer Thompson, and denied [Fiorentino's] motion to introduce additional instances of misconduct by Officer Thompson.Commonwealth v. Fiorentino, No. 3103 EDA 2015, 2017 WL 203973, at *1-2 (Pa. Super. Ct. Jan. 18, 2017) (“Direct Appeal Opinion”).
On June 29, 2015, following a jury trial before the Honorable Patrick Carmody, Mr. Fiorentino was found guilty of two counts each of aggravated assault-attempt to cause serious bodily injury, aggravated assault-attempt to cause serious bodily injury to an enumerated person, aggravated assault-attempt to cause serious bodily injury with a deadly weapon, aggravated assault-physical menace, person not to possess a firearm, and a single count of possession of a firearm with altered manufacturer's number. Id. On September 24, 2015, Judge Carmody sentenced Mr. Fiorentino to twenty-five to fifty years in prison. Id.
On October 14, 2015, Mr. Fiorentino, through counsel, appealed the judgment of sentence to the Pennsylvania Superior Court, asserting five grounds for appeal:
1. The trial court erred in denying the Motion to Suppress Mr. Fiorentino's statement pursuant to the Sixth Amendment.
2. The trial court erred in denying Defendant's Motion to Suppress Mr. Fiorentino's statement under the Fifth Amendment.
3. The trial court erred in failing to disclose to Mr. Fiorentino the entire Internal Affairs file of former state trooper, Joseph Thompson.
4. The trial court erred in precluding Mr. Fiorentino from introducing evidence of four prior police involve shootings in which Trooper Thompson was responsible.
5. The trial court erred in precluding a portion of the prison tape recording whereby Mr. Fiorentino stated that he did not possess the gun that had been fired.
Concise Statement of Errors Complained of in the Appeal Pursuant to Pa. R.A.P. 1925(b)(1), Commonwealth v. Fiorentino, CP-15-CR-0000309-2014 (Pa. Ct. Com. Pl. Nov. 12, 2014). On January 18, 2017, the Pennsylvania Superior Court affirmed Mr. Fiorentino's judgment of sentence. See Direct Appeal Opinion. On August 2, 2017, the Pennsylvania Supreme Court denied Mr. Fiorentino's Petition for allowance of appeal. See Commonwealth v. Fiorentino, 169 A.3d 1082 (Pa. 2017).
On July 18, 2018, Mr. Fiorentino filed a petition under the Post-Conviction Relief Act, 42 U.S.C. §§ 9541-46 (“PCRA”), and PCRA counsel was assigned. On October 15, 2019, PCRA counsel filed a “no-merit” Finley-Turner letter and moved to withdraw. Judge Carmody issued a Notice of Intent to Dismiss on May 9, 2020.
A Finley-Turner letter is filed by defense counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania v. Finley, 481 U.S. 55 (1987) and accompanied by a motion to withdraw the representation. In the letter, defense counsel will discuss all possible issues for appeal and describe why those issues are not viable.
On July 30, 2020, Petitioner pro se filed an Amended PCRA petition, which Judge Carmody dismissed on December 28, 2020. On January 25, 2021, Mr. Fiorentino pro se appealed to the Pennsylvania Superior Court, raising seven grounds:
1. Trial counsel was ineffective for failing to object to the prosecution's reference to the jury that Mr. Fiorentino was an “assassin” in the opening statement.
2. Trial counsel was ineffective for failing to file a post-sentence motion for reconsideration of sentence.
3. Trial counsel was ineffective for failing to consult and/or call an expert witness relating to the “statement” sought to be suppressed pre-trial.
4. Trial counsel was ineffective for failing to ask for suppression of a weapon found near the crime scene where there was no physical or circumstantial evidence connecting Mr. Fiorentino to the weapon.
5. Trial counsel was ineffective for failing to use certain disciplinary records when cross-examining the Commonwealth's witnesses.
6. Trial counsel was ineffective for failing to refute the accusations that Mr. Fiorentino discharged a gun prior to the shooting.
7. Trial counsel was ineffective for implying that Mr. Fiorentino returned fire in self-defense where there was no proof of justification.
Concise Statement of Matters Complained on Appeal Pursuant to 1925(b), Commonwealth v. Fiorentino, No. 309-2014 (Pa. Ct. Com. Pl. Mar. 24, 2021). The Pennsylvania Superior Court affirmed the dismissal on March 1, 2022. Mr. Fiorentino did not appeal that decision.
Mr. Fiorentino filed the instant Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 (the “Petition”) on August 30, 2022. Doc. No. 2. The Honorable Jeffrey L. Schmehl then referred the case to me for a Report and Recommendation. See Doc. No. 7.
My recommendation is based exclusively on the untimely filing of Mr. Fiorentino's Petition. A petitioner is entitled to an extra “bite of the apple,” by way of a federal habeas proceeding, but that bite is limited by rigorous time constraints. The time constraints serve important policy aims, including the finality of judgments, the appropriate allocation of scarce judicial resources, and the prevention of delay in the federal habeas review process. See Holland v. Florida, 560 U.S. 631, 648 (2010); Duncan v. Walker, 533 U.S. 167, 179 (2001). Mr. Fiorentino raises four issues in his Petition: (1) violations of Fifth and Sixth Amendment rights due to failure to suppress certain statements; (2) violations of discovery provisions due to the Court's failure to give access to trooper documents; (3) violations of Fifth and Sixth Amendment rights due to failure to allow exculpatory evidence at trial; and (4) violations of Fifth and Sixth Amendment rights due to failure to object to prosecutors' statements to jury. Doc. No. 1 at 6-12. Even if the Petition was timely filed (it was not), Mr. Fiorentino has not shown that he is entitled to relief. A habeas petition must “allege the facts concerning the applicant's commitment or detention, the name of the person who has authority over him and by virtue of what claim or authority if known.” 28 U.S.C. § 2242. A habeas petition “must ‘specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground.'” Mayle v. Felix, 545 U.S. 644, 645 (2005). The federal habeas court may dismiss a habeas petition if it appears on its face that the petitioner is not entitled to relief. See Denny v. Schultz, 708 F.3d 140, 148 n.3 (3d Cir. 2013). However, given the less stringent standards applied to pro se parties, the court must construe a pro se habeas petition liberally. See Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002). Mr. Fiorentino has alleged no facts at all, let alone facts that would support a finding that he was convicted in violation of the Constitution. Rather, the “supporting facts” sections in Mr. Fiorentino's Petition contain instructions to “view memorandum” (Doc. No. 2 at 6) or “see memorandum” (Doc. No. 2 at 8, 10, 11). Mr. Fiorentino did not submit a traditional memorandum of law or brief with his Petition. Instead, it appears that Mr. Fiorentino is referencing two Pennsylvania state court opinions attached to his Petition. Reading the Petition in the most generous light, it appears that Mr. Fiorentino seeks to invoke the same facts underlying his direct appeal and PCRA petition in his habeas petition. Even so, grounds two, three, and four are procedurally defaulted and, therefore, are not eligible for federal review. A claim is procedurally defaulted where it has not been fairly presented to the state courts (i.e. is unexhausted) and there are no additional state remedies available to pursue, see Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001), or where the claim was properly raised in the state courts, but not addressed on the merits because of an independent and adequate state procedural rule, see McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). A federal claim is “fairly presented” to the state courts where the petitioner has raised “the same factual and legal basis for the claim to the state courts.” See Nara v. Frank, 488 F.3d 188, 198-99 (3d Cir. 2007). Because Mr. Fiorentino did not present the federal claims asserted in grounds two, three, and four to the Pennsylvania state courts, they are procedurally defaulted and ineligible for federal habeas review. Ground one, which was raised during Mr. Fiorentino's PCRA proceedings also fails. Where a claim has been evaluated by a state court on its merits, habeas relief is proper only where the state's adjudication was “contrary to,” or involved an “unreasonable application of” clearly established federal law. 28 U.S.C. § 2254(d)(1)-(2). My review is highly deferential to the state court's decision. During Mr. Fiorentino's PCRA proceedings, the Pennsylvania Superior Court thoroughly reviewed seven claims of ineffective assistance of trial counsel and found that each of Mr. Fiorentino's claims either were waived or lacked merit. Because the state court's adjudication does not violate clearly established law, Mr. Fiorentino's request for federal habeas relief also fails on its merits.
DISCUSSION
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 that provides, in relevant part:
(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 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.
(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 subsection.28 U.S.C. § 2244(d); see Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001).
Mr. Fiorentino filed a direct appeal which was rejected by the Pennsylvania Superior Court on January 18, 2017. The Supreme Court denied Mr. Fiorentino's Petition for allowance of appeal on August 2, 2017. Mr. Fiorentino did not appeal this denial to the United States Supreme Court. Accordingly, Mr. Fiorentino's conviction became final on September 1, 2017, thirty days after the Pennsylvania Supreme Court declined review of his appeal. Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (“[T]he applicable starting point [for the AEDPA statute of limitations] is the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review, including the time for filing a writ of certiorari in the Supreme Court.”).
I. Statutory Tolling
The ADEPA's one-year statute of limitations was tolled during the time Mr. Fiorentino had a properly filed PCRA petition 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. Fiorentino filed his timely PCRA petition on July 18, 2018, 320 calendar days after his sentence became final. The statute of limitations was then tolled from the date the PCRA petition was filed until the deadline for filing timely request for allowance of appeal by Pennsylvania Supreme Court. See Swartz, 204 F.3d at 420-24. The Superior Court affirmed the dismissal of his PCRA Petition on March 1, 2022, thus the statute of limitations was tolled until the deadline to appeal expired on March 31, 2022. With 320 days expired, Mr. Fiorentino had a remaining 45 days to timely file a § 2254 Petition for Writ of Habeas Corpus. With the included statutory tolling, Mr. Fiorentino needed to file a federal habeas petition on or before May 15, 2022 for it to be considered timely.
Mr. Fiorentino filed the instant Petition on August 30, 2022, more than three months late. Thus, Mr. Fiorentino's Petition is untimely and should be dismissed unless there are grounds for equitable tolling.
II. Equitable Tolling
In limited circumstances, the federal habeas statute of limitations may be subject to equitable tolling. Holland v. Fla., 560 U.S. 631, 648-49 (2010). The Third Circuit has explained that “equitable tolling is appropriate when principles of equity would make the rigid application of a limitation period unfair, but that a court should be sparing in its use of the doctrine.” Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013). Equitable tolling is allowed only where 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, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Mr. Fiorentino has not made any arguments relating to the timeliness of his Petition. In the section of his form habeas petition relating to the statute of limitations Mr. Fiorentino stated only “§ 2244(d)(2).” See Doc. No. 2 at 15. The cited statute section-which provides: “[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”-relates to statutory tolling. 28 U.S.C.A. § 2244(d)(2). As discussed above, even with appropriate statutory tolling, Mr. Fiorentino's petition is not timely.
Mr. Fiorentino does not argue in his Petition that he is entitled to equitable tolling. Even if I were to interpret Mr. Fiorentino's citation to Section 2244(d)(2) as encompassing an equitable tolling argument, he has not shown that he has been diligently pursuing his rights or that extraordinary circumstances prevented him from filing a timely habeas petition.
“The diligence required for equitable tolling purposes is ‘reasonable diligence.'” Holland, 560 U.S. at 653. More than three months passed between the expiration of the statute of limitations and the filing of Mr. Fiorentino's Petition. See Pace, 544 U.S. at 419 (finding a five-month delay was not reasonably diligent). Mr. Fiorentino has provided no explanation for his delay and, therefore, has not shown that he has been pursuing his rights diligently.
Nor has Mr. Fiorentino shown any extraordinary circumstances that would entitle him to relief. The Third Circuit has determined that the kind of “extraordinary circumstances” necessary to apply equitable tolling may be found when: (1) the state has actively misled the petitioner; (2) the petitioner has in some extraordinary way been prevented from asserting his rights; or (3) the petitioner has timely asserted his rights but in a wrong forum. Johnson v. Hendricks, 314 F.3d 159, 162 (3d Cir. 2002) (quoting Fahy, 240 F.3d at 244). Mr. Fiorentino has not asserted, let alone established, that some extraordinary circumstance exists to excuse his failure to timely file his Petition.
RECOMMENDATION
I recommend that Mr. Fiorentino's habeas 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. Fiorentino has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Petitioner 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).