Opinion
Civil Action No. 20-172
02-25-2020
ANTONIO L. GREEN, Petitioner, v. MARK CAPOZZA, Respondent.
District Judge Nora Barry Fischer/Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition") be dismissed pre-service pursuant to Rule 4 of the Rules Governing Section 2254 Cases because the Petition is time barred and that a certificate of appealability be denied.
II. REPORT
Antonio L. Green ("Petitioner") is a state prisoner, challenging his convictions for, inter alia, attempted homicide and aggravated assault in connection with the shooting of an adult male and a female child. Because the Petition was not filed within one year of Petitioner's conviction becoming final, the Petition should be dismissed.
A. Factual History
We take judicial notice of the Pennsylvania Superior Court decision in a Memorandum filed on November 19, 2013 relative to Petitioner's second Post Conviction Relief Act ("PCRA") proceedings. The Superior Court recounted the facts underlying Petitioner's convictions as follows.
The evidence revealed that on August 25, 2003, the police were called to a shooting on Bausman Street in the Knoxville area of the City of Pittsburgh. When [the police] arrive, they discovered a two-year-old girl, Atavia Carter, had been shot in the leg. [Atavia] was immediately rushed to Children's Hospital. [The police] also discovered another victim, Antoine Roach, who was shot in the leg. The evidence also revealed that approximately forty-five minutes before the shooting, [ ] Roach had a heated argument with [Green]. In the course of that argument, Green made threats to kill [ ] Roach. [Roach] was unable to identify the individual who shot at him, but did confirm that there was a heated argument with [Green] shortly before the shooting. The Commonwealth also presented testimony from Richard Anderson, a neighbor who witnessed the incident. [Anderson] testified that he initially saw the argument between [ ] Roach and an individual in a black Cadillac. Approximately one-half hour later, [Anderson] saw an individual[, who] he identified at trial as [Green,] approach the area where [ ] Roach was sitting on the front stoop with his niece, [Atavia]. [Anderson] heard gunfire and saw [Green] running from the area of the shooting. [Anderson] positively identified [Green] as the individual he saw approach the area on foot, fire at the victims and then flee.Com. ex rel. Green v. Coleman, 234 WDA 2013, 2013 WL 11250791, at *1 (Pa. Super. Nov. 19, 2013) (quoting Com. v. Green, 959 A.2d 460 (Pa. Super. 2008) (unpublished memorandum at 1-3) (quoting Trial Court Opinion, 1/19/07, at 2-3), appeal denied, 962 Pa. 1195 (Pa. 2008)).
Aron Carter, Atavia's father, testified that he was present inside the home on the day of the shooting. [Carter] heard an argument outside and saw [ ] Roach arguing with [Green], who was in a black Cadillac. [Carter] heard [Green] state to [ ] Roach that he was going to do a "187." [Carter] testified that he understood that to mean, in street parlance, that Green would kill [ ] Roach. [Carter] also testified that during this verbal altercation, he was standing approximately a sidewalk length away from the car and could see a black handgun sitting on [Green's] lap. Although [Carter] initially brought his daughter inside because of concern over the altercation, after some time had elapsed, he believed that it was safe for her to go back outside. [Carter] took [Atavia] outside and told her to stay on the steps. Within seconds of reentering the house, [Carter] heard approximately three gun shots. As [Cater] [sic] ran outside, he saw his daughter lying on the ground and could see the back of an individual running around the corner of a building. Although he could not see the face of this individual, based upon this person's body structure and clothing that he was wearing, [Carter] believed it was the same individual [whom] he had seen arguing with [ ] Roach fifteen to twenty minutes earlier.
B. Procedural History
1. State Court
The Superior Court recounted the procedural history in the state courts as follows.
On June 22, 2005, a jury convicted Green of criminal attempt-homicide, aggravated assault (two counts), and a firearms not to be carried without a license. At the conclusion of a July 11, 2005, bench trial, the trial court also found Green guilty of persons not to possess firearms. On November 2, 2005, the trial court imposed a sentence of 15 to 30 years' imprisonment for the attempted homicide conviction, and a consecutive sentence of 10 to 20 years' imprisonment for the aggravated assault of the child victim. His timely filed post sentence motion was denied by the trial court on March 2, 2006.Id. at 2. The Superior Court affirmed the denial of relief in the second PCRA proceedings, finding that the second PCRA Petition was untimely filed and Petitioner failed to establish any exception to the PCRA statute of limitations. Id.
On May 30, 2006, Green filed a pro se motion to reinstate his appellate rights, which was granted on June 1, 2006. Thereafter, he filed a direct appeal nunc pro tunc, in which he challenged, inter alia, the sufficiency of the evidence supporting the intent to kill element of his conviction of attempted homicide. This Court affirmed his judgment of sentence on direct appeal, and, on December 2, 2008, the Pennsylvania Supreme Court denied his petition for allocator review.
Green filed a timely pro se PCRA petition on January 26, 2009, in which he challenged, inter alia, the ineffectiveness of counsel for failing to object to the amendment of his criminal information before the preliminary hearing to include the charge of attempted homicide. Counsel was appointed, but later filed a petition to withdraw from representation and accompanying Turner/Finley no merit letter. On February 19, 2010, the PCRA court granted counsel's petition to withdraw, and notified Green of its intention to dismiss the PCRA petition without first conducting an evidentiary hearing. See Pa.R.Crim.P. 907. On June 10, 2010, the PCRA court entered an order denying Green's petition.
On August 23, 2012, Green filed the present, pro se Petition for Writ of Habeas Corpus ad Subjiciendum. On September 17, 2012, the PCRA court notified Green of its intention (1) to treat the filing as a PCRA petition, and (2) to dismiss the petition as untimely filed and meritless. Green filed a pro se brief and a pro se amended brief in opposition of the court's notice. However, on January 2, 2013, the court entered an order dismissing Green's petition. This appeal followed.
We take further judicial notice of the Superior Court's Memorandum filed on February 28, 2019, which recounted the history of Petitioner's third PCRA petition. The Superior Court recounted the history of the third PCRA petition as follows:
On September 12, 2017, Appellant filed pro se his third PCRA petition. On November 7, 2017, the PCRA court filed a Pa.R.Crim.P. 907 notice of its intent to dismiss his petition as untimely filed, and Appellant subsequently filed a timely response. Nevertheless, the PCRA court dismissed his petition on January 25, 2018, and, on February 15, 2018, Appellant filed a timely notice of appeal. Thereafter, the PCRA court directed him to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied. The PCRA court then filed a Rule 1925(a) opinion.Com. v. Green, 345 WDA2018, 2019 WL 990499, at *1 (Pa. Super. Feb. 28, 2019). The Superior Court again affirmed the denial of relief in his third PCRA petition, again finding the third PCRA Petition to be untimely filed under the PCRA statute of limitations and that Petitioner had failed to establish any exception.
2. Federal Court
Petitioner purportedly signed the instant Petition on January 16, 2020, but it was not received by the Clerk's Office until February 4, 2020. Attached to the form Petition was a filing also titled "Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254," which is more in the nature of a brief in support of the Petition ("Brief in Support"). ECF No. 1-1.
In Ground One of the Petition, Petitioner asserts that:
Petitioner's consecutive sentences for criminal attempt homicide and aggravated assault should have merged for sentencing; Petitioner was sentenced beyond the statutory maximum[.]ECF No. 1 at 5. In what he labels the "Statement of Issue Presented for Review" in the Brief in Support, Petitioner sets forth the following claim:
Was the state court's ruling that the Petitioner was required to hurdle the state time bar as a basis for it to rule on a non-waivable claim on an illegal sentence contrary to federal law, where Petitioner was sentenced beyond the statutory maximum and under consecutive sentences that should have merged.ECF No. 1-1 at 5.
C. Discussion
1. Rule 4
The Petition has not been served yet but pursuant to Rule 4 of the Rules Governing Section 2254 cases, this Court may dismiss the Petition if it plainly appears on its face that the Petitioner is not entitled to habeas relief.
Rule 4 provides in relevant part that:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.In interpreting Rule 4, the Advisory Committee Notes to Rule 4 observe that:
28 U.S.C. § 2243 requires that the writ shall be awarded, or an order to show cause issued, "unless it appears from the application that the applicant or person detained is not entitled thereto." Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition.In addition to ordering state court records and/or opinions, a federal habeas court may, under Rule 4, take judicial notice of those state court records and/or state court opinions as well as its own court records. See, e.g., Barber v. Cockrell, 4:01-CV-0930, 2002 WL 63079, at *1 n.4 (N.D. Tex. Jan. 8, 2002)(in a Rule 4 case, the court took judicial notice of its own records of a prior habeas petition filed by the petitioner); United States ex. rel. Martin v. Gramley, No. 98 C 1984, 1998 WL 312014, at *1 (N.D. Ill. June 3, 1998)(in a Rule 4 summary dismissal, the court took "judicial notice of the opinion of the Illinois Appellate Court in this case."); Barber v. Cockrell, No. 4:01-CV-930, 2002 WL 63079, at * 1 (N.D. Tex. Jan. 8, 2002)(in a Rule 4 case, the court stated that from "the face of the petition, and from [state] court records of which this Court can take judicial notice, the court determines that this is a successive petition. . . ."). Accordingly, in deciding this Petition, this Court takes judicial notice of the records in Petitioner's criminal case and the decisions of the state courts addressing his appeals.
2. AEDPA Statute of Limitations
The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254 was enacted on April 24, 1996. Because the Petition in this case was filed after its effective date, the AEDPA is applicable to this case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).
The AEDPA requires that state prisoners file their federal habeas petition within one year after their conviction became final. Specifically, the AEDPA provides that:
(d)(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.
28 U.S.C. § 2244(d).
(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.
3. The Petition is clearly time barred.
Petitioner correctly concedes that his Petition is untimely filed under the AEDPA statute of limitations. Petitioner declares that "[t]he AEDPA sets forth a one year limitation for filing habeas corpus petitions. The one year period from the time Petitioner's judgment became final has long since passed." ECF No. 1-1 at 4. We agree.
As recounted above by the Superior Court, Petitioner's Petition for Allowance of Appeal in Petitioner's reinstated direct appeal was denied on December 2, 2008. Accordingly, Petitioner's conviction became final 90 days later, on March 2, 2009. Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013) ("On direct review, the Pennsylvania Supreme Court denied Jenkins's petition for allowance of appeal on September 28, 2007. Jenkins, 932 A.2d 1286. Because Jenkins had ninety days to petition for certiorari to the United States Supreme Court, his conviction became final on December 27, 2007. Sup.Ct. R. 13.1. Jenkins did not file his habeas petition until well over a year later on May 7, 2010; thus, it is untimely unless AEDPA's limitation period was tolled.").
As provided by the AEDPA, Petitioner would have had one year after March 2, 2009, i.e., the date his conviction became final by which to file his habeas Petition in federal court attacking deficiencies in his conviction/sentence. However, pursuant to 28 U.S.C. § 2244(d)(2), the filing of a timely PCRA Petition and its pendency tolls the running of the AEDPA statute of limitations. In this case, the Superior Court noted that Petitioner filed his first PCRA Petition on January 26, 2009 even before his conviction became final.
On June 10, 2010, the PCRA trial court denied his first PCRA petition and thereafter Petitioner did not appeal. Brief for Appellee, Com v. Green, (No. 345 WDA 2018), 2018 WL 6581139, at *4 (Pa. Super.), ("Appellant filed a petition for relief under the Post Conviction Relief Act (PCRA) on January 26, 2009 (DE No. 38). Counsel was appointed to represent him in connection with that petition (DE No. 42). On February 19, 2010, Judge Manning sent Notice of Intention to Dismiss the petition (DE No. 50). He did so on June 10, 2010 (DE No. 51). Appellant did not appeal that decision."). The first PCRA Petition then was pending until July 10, 2010, i.e., thirty days after June 10, 2010, (the date on which the PCRA trial court dismissed the first PCRA petition), which is the period permitted by Pennsylvania law for the filing of an appeal. Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000). Accordingly, the AEDPA statute of limitations began to run again as of July 10, 2010 and ran out July 10, 2011, one year later. Phlipot v. Johnson, CV 14-383-RGA, 2015 WL 1906127, at *3 (D. Del. Apr. 27, 2015) ("The Court notes that 2012 was a leap year with 366 days. However, '[e]very federal circuit that has addressed the issue has concluded that [the] method in [in Fed.R.Civ.P. 6], i.e., the 'anniversary' method, for calculating a time period applies to [ ] AEDPA's one-year limitation period.')(quoting Nunez v. California, 2014 WL 809206, at *3 n.9 (N.D. Oh., Feb. 25, 2014)(collecting cases)).
While it is true that Petitioner filed a second PCRA Petition, on August 23, 2012, because the AEDPA statute of limitations had already run, the second PCRA Petition cannot serve to toll it. Cordle v. Guarino, 428 F.3d 46, 48 n.4 (1st Cir. 2005)("Under 28 U.S.C. § 2244(d)(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 the one-year limitations period. However, Cordle's motion for a new trial was not filed until November 11, 2000, several years after her AEDPA limitations period had already expired. 'Section 2244(d)(2) only stops, but does not reset, the [AEDPA] clock from ticking and cannot revive a time period that has already expired.'"); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) ("A state-court petition ... that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled.")
Actually, Petitioner contended before the state courts that he did not file a second PCRA Petition but instead filed a state petition for writ of habeas corpus. However, the state courts held that his filing was properly treated under state law as a PCRA petition. Com. ex rel. Green v. Coleman, 2013 WL 11250791, at *2 - 3.
Pursuant to the prisoner mailbox rule, Petitioner is not deemed to have filed the instant Petition in this Court, until, at the earliest, January 16, 2020, the date on which he purportedly signed his Brief in Support of the Petition, ECF No. 1-1 at 21, or more than eight years after the AEDPA statute of limitations had already run out on August 14, 2010. Accordingly, we find that on the face of the Petition and facts of which judicial notice may be had, the instant Petition is plainly time barred under the controlling statute of limitations. United States v. Bendolph, 409 F.3d 155 (3d Cir. 2005) (holding that a district court possesses the authority to raise AEDPA's statute of limitations sua sponte during its initial consideration of a petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts).
Petitioner does argue that under state law, a claim that a sentence is illegal is non-waivable, apparently meaning thereby that no matter what procedural failings he may have engaged in, including the failure to bring the illegal sentence claim in a timely state court petition, the state courts must address the claim of an illegal sentence and the failure of the state courts to do so somehow violated his federal rights. ECF No. 1-1 at 1 ("The state courts ruled that the Petitioner was required to hurdle the state time bar as a basis for state court jurisdiction to rule on a non-waivable claim of an illegal sentence where Petitioner was sentenced beyond the statutory maximum and under consecutive sentences that should have merged.")(emphasis deleted). See also id. at 15 ("A challenge to the legality of the sentence may be raised as a matter of right, in non-waivable, and may be entertained so long as a reviewing court has jurisdiction."). However, Petitioner is simply wrong on the law.
Although Petitioner argues that the state courts erred as a matter of state law in holding his claim of an illegal sentence subject to the PCRA statute of limitations as the Superior Court held in Petitioner's case, in fact, this holding has been repeatedly enforced by the state courts. Commonwealth v. Barnes, No. 2079 EDA 2012, 2013 WL 11258870, at *3 (Pa. Super. July 25, 2013) ("These exceptions [to the PCRA statute of limitations] apply even when there is a claim of an illegal sentence. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (determining that challenges to legality of sentence claims 'must still first satisfy the PCRA's time limits or one of the exceptions thereto'); Commonwealth v. Vega, 754 A.2d 714, 719 (Pa. Super. 2000) (holding that legality of sentence claims 'must first satisfy the Act's time limitations or one of its exceptions'). To invoke any one of the aforementioned exceptions, the petition must be filed 'within 60 days of the date the claim could have been presented.' 42 Pa. C.S.A. § 9545(b)(2). Appellant's conviction became final on September 17, 1991, one year after the United States Supreme Court denied Appellant's petition for writ of certiorari. Hence, Appellant's November 1, 2011 petition is facially untimely and may not be considered unless Appellant pleads and proves one of the three exceptions. Appellant has failed to do so. As a result, the PCRA court correctly concluded the PCRA petition was untimely."). Therefore, we reject Petitioner's contention as to the inapplicability of the PCRA statute of limitations to an illegal sentence claim.
Nor has he convinced this Court that the application of the PCRA statute of limitations to his illegal sentence claim somehow violated his federal rights or that such a claim is even cognizable here in the instant habeas proceedings. As explained by another District Court:
Petitioner's challenge as to the PCRA statute of limitations represents an argument that the PCRA process was defective as to him. As explained above, challenges concerning alleged errors in collateral proceedings are clearly outside the scope of federal habeas review. See Abu-Jamal v. Horn, 520 F.3d 272, 297 (3rd Cir. 2008), rev'd on other grounds, Beard v. Abu-Jamal, --- U.S. - - - - , --- S.Ct. ----, --- L.Ed.2d - - - - , 2010 WL 154862, (U.S. Jan. 19, 2010) (claim that petitioner was denied due process during post-conviction proceedings is not a cognizable claim under federal habeas review); Lambert, 387 F.3d at 247 (petitioner's claim of evidentiary misconduct by the Commonwealth during a PCRA hearing is not a cognizable claim for purposes of federal habeas review); Hassine, 160 F.3d at 954; Beeman v. Ortiz, 161 F. App'x 767, 769 (10th Cir. 2006) (finding that attack on state post-conviction procedures is not cognizable under § 2254); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002) ("[R]elief may not be granted to a habeas petitioner for alleged deficiencies in a state's post-conviction procedure[.]"). Therefore, it appears that Magistrate Judge Rice correctly found that Petitioner's claim as to the "constitutional infirmity" of the PCRA's one-year statute of limitations is not a viable claim for purposes of federal habeas review.Malone v. Coleman, CIV.A. 09-2656, 2010 WL 891031, at *1 (E.D. Pa. Mar. 5, 2010).
Lastly, to the extent that Petitioner suggests that this Court cannot apply the AEDPA statute of limitations bar to his claim of an allegedly illegal sentence, Petitioner is wrong as a matter of federal law. Witman v. Cameron, No. CV 16-1814, 2016 WL 3922631, at *4-5 (E.D. Pa. June 14, 2016), report and recommendation adopted, No. CV 16-1814, 2016 WL 3922628 (E.D. Pa. July 20, 2016) wherein the Court held that:
federal district courts routinely hold that a habeas petitioner asserting that his sentence violates the Constitution is required to abide by the AEDPA statute of limitations. See, e.g., Howell v. Spearman, No. C 13-5176 RMW (PR), 2015 WL 3465799, at *3 (N.D. Cal. May 29, 2015) (petitioner required to abide by the AEDPA statute of limitations to raise a claim of illegal sentence); Farnsworth v. Ryan, No. CV-10-361-PHX-ROS, 2011 WL 5882194, at *3 (D. Ariz. Nov. 23, 2011) (AEDPA statute of limitations applies to petition asserting that state court lacked subject matter jurisdiction to impose unconstitutional sentence); Debroeux v. Erickson, No. 05-1673, 2006 WL 1896194, at *1 (E.D.Pa. July 7, 2006) (applying AEDPA to petition raising claim of illegal sentence). In light of the foregoing, Petitioner's claim of illegal sentence based on Alleyne is governed by the AEDPA, and it is only properly before the Court if it was asserted prior to the expiration of the federal habeas statute of limitations. As set forth below, it was not.Accordingly, for the reasons set forth above, the Petition should be dismissed pre-service because it concededly and clearly violates the AEDPA one-year statute of limitations.
D. Certificate of Appealability
Because jurists of reason would not find the foregoing debatable, a certificate of appealability should be denied.
III. CONCLUSION
For the foregoing reasons, the Petition should be dismissed as time barred, and a certificate of appealability should be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted, Date: February 25, 2020
/s/_________
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Nora Barry Fischer
United States District Judge
ANTONIO L. GREEN
FN 6123
SCI Fayette
48 Overlook Drive
Labelle, PA 15450