Opinion
Civil Action 19-744
07-20-2021
ETHAN ANDREW HANNOLD, Petitioner, v. SUPERINTENDENT MARK GARMAN, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and CLARION COUNTY DISTRICT ATTORNEY, Respondents.
J. Nicholas Ranjan, District Judge.
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan, United States Magistrate Judge.
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 4) filed by Petitioner Ethan Andrew Hannold be dismissed as untimely or, in the alternative, be denied. It is also recommended that a certificate of appealability be denied.
II. REPORT
Currently pending before the Court is a Petition for Writ of Habeas Corpus (“Petition”) filed by Petitioner Ethan Andrew Hannold (“Petitioner”) pursuant to 28 U.S.C. § 2254. (ECF No. 4.) Petitioner challenges his June 18, 2014 judgment of sentence out of Clarion County, Pennsylvania. For the following reasons, it is recommended that the Petition be dismissed as untimely or, in the alternative, be denied. It is also recommended that a certificate of appealability be denied.
A. Factual and Procedural Summary
The Pennsylvania Superior Court, in Petitioner's direct appeal, provided the following summary of the underlying factual history:
These cases involved two brutal and senseless attacks on innocent women. During the one incident, at case number 170 CR 2013, [Petitioner] executed a plan of running a young woman off the road with his car and then coming to her aid[] for the bizarre purpose of making himself feel good about helping someone. When the young woman told [Petitioner] her father was coming and she did not need his help, he felt rejected and became incensed and punched her many times through her open car window, breaking her nose and bloodying her face. He then sexually assaulted her by grabbing her between her legs and ripping her pants off. He tried to pull her through the window, but he fell down and she managed to get away.
In the second case, number 41 CR 2014, [Petitioner] drove up behind a woman who was walking in town in a residential area. Without warning, he ran her down with his car and then fled the scene. She suffered a traumatic brain injury.Commonwealth v. Hannhold, Nos. 1088 WDA 2014, 1089 WDA 2014, 2016 WL 509468, at *1 (Pa. Super. Feb. 5, 2016) (quoting Trial Court Opinion, 9/5/14, at 1). As a result of both incidents, Petitioner was charged with multiple crimes. He proceeded to negotiate plea agreements in both cases. At 170 CR 2013, Petitioner entered a guilty plea on August 28, 2013, to aggravated assault, robbery by threat of immediate serious injury, recklessly endangering another person (“REAP”), and indecent assault by forcible compulsion. All other charges were nol prossed by the Commonwealth. The indecent assault charge required an assessment by the Sexual Offenders Assessment Board to determine if Petitioner was a sexually violent predator (“SVP”). The SVP hearing was held on May 16, 2014. Following the hearing, the trial court deemed Petitioner to be an SVP. At 41 CR 2014, Petitioner entered a guilty plea to aggravated assault on June 18, 2014. All other charges were nol prossed by the Commonwealth. On June 18, 2014, Petitioner was sentenced, at both dockets, to an aggravated sentence of twenty-five to fifty years of incarceration in conformity with the plea agreements. The sentence included lifetime registration as an SVP. See Commonwealth v. Hannold, No. 86 WDA 2018, 2018 WL 3737971, at *1 (Pa. Super. Aug. 7, 2018).
Petitioner timely filed a direct appeal, and on February 5, 2016, the Superior Court affirmed Petitioner's judgment of sentence. (ECF No. 9-1.) Petitioner did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.
On January 30, 2017, Petitioner, through counsel, filed a timely petition pursuant to Pennsylvania's Post-Conviction Relief Act (“PCRA”) where he asserted several instances of ineffective assistance of trial counsel. After a series of continuances, the PCRA court held an evidentiary hearing on August 22, 2017. (ECF No. 13-2.) On December 12, 2017, the PCRA court entered an order and opinion denying the PCRA petition. (ECF No. 13-3.) Petitioner timely filed a notice of appeal, and on August 7, 2018, the Superior Court affirmed the denial of PCRA relief. (ECF Nos. 13-4, 13-5.) Petitioner subsequently filed a petition for allowance of appeal, which was denied by the Pennsylvania Supreme Court on February 26, 2019. (ECF No. 9-4.)
Petitioner initiated the instant habeas proceeding on June 18, 2019. (ECF No. 1.) In his Petition, he raises two claims. The first is not so much a claim, but rather an excuse to excuse the untimely filing of his Petition. Specifically, he asserts that he is entitled to equitable tolling due to the ineffectiveness of his PCRA counsel in failing inform him that the Pennsylvania Supreme Court denied his petition for allowance of appeal. The second claim is a series of ineffective assistance of counsel claims, including (1) failing to attend the Sexual Offenders Assessment Board Hearing and advise him of his right to remain silent during such assessment, at which Petitioner incriminated himself by confessing to other criminal acts for which he was later charged; (2) failing to obtain mental health evaluation reports and/or a psychiatric evaluation to obtain a more favorable sentence for Petitioner despite being aware that he had previously received psychiatric treatment; (3) failing to obtain a psychiatric evaluation of Petitioner because, according to Petitioner, he has impulse control disorder which caused him to enter an involuntary guilty plea; and (4) failing to “suppress” a letter between the judge and an independent citizen. (ECF No. 4.) Respondents filed their Answer to the Petition on September 20, 2019, asserting that the Petition should be dismissed because it was untimely filed and/or denied because there is no merit to any of Petitioner's claims. (ECF No. 13.) Petitioner filed a Reply to their Answer on December 23, 2019. (ECF No. 18.)
This is the filing date pursuant to the prison mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988).
B. Discussion
1. The Petition should be dismissed as untimely.
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 postconviction 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 of the other exceptions or equitable tolling should be applied on the facts presented.
Here, it appears that the “trigger date” for all of Petitioner's claims is the date on which his judgment of sentence became final, which in this case was March 7, 2016, the last day Petitioner had to file a petition for allowance of appeal in the Pennsylvania Supreme Court after the Superior Court affirmed his judgment of sentence. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes “final” at the conclusion of direct review or the expiration of time for seeking such review). Thus, the first day of Petitioner's one-year statute of limitations was March 8, 2016, and, absent any tolling for “properly filed” applications for postconviction relief, Petitioner had until March 8, 2017, to file a timely federal habeas petition challenging his judgment of sentence. As previously noted, however, Petitioner did not file his Petition in this case until June 18, 2019. Accordingly, the Court must next determine whether Petitioner can take advantage of the tolling provision in section 2244(d)(2).
The thirtieth day, the final day Petitioner had to file a petition for allowance of appeal, fell on March 6, 2016, a Sunday. Petitioner therefore had until the next day, March 7, 2016, to file his petition for allowance of appeal. See Pa. R. Civ. P. 106(b).
Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a “properly filed” state post-conviction proceeding. Here, Petitioner filed a PCRA Petition on January 30, 2017, which was 328 days after his judgment of sentence became final. After the filing of the PCRA Petition, Petitioner's one-year statute of limitations was tolled until the Pennsylvania Supreme Court denied his petition for allowance of appeal on February 26, 2019. With only 37 days remaining (365-328=37), Petitioner's one-year statute of limitations started to run again on February 27, 2019, and it fully expired on April 4, 2019. As previously stated, however, Petitioner did not file the instant Petition until June 18, 2019, which was 74 days after his statute of limitations expired. As such, the Petition was untimely filed.
Having failed to meet AEDPA's one-year statute of limitations, the Petition can only be saved by the application of equitable tolling or the Supreme Court's recognized fundamental miscarriage of justice exception. See Holland v. Florida, 560 U.S. 631 (2010); see also McQuggin v. Perkins, 569 U.S. 383 (2013). Here, Petitioner recognizes that his Petition was untimely filed, but he argues that he is entitled to equitable tolling because he did not learn that his petition for allowance of appeal had been denied until he was informed by his father on June 6, 2019. Petitioner claims that his father had been informed of the denial by Petitioner's attorney via email “sometime after said denial, ” but that “during that time period” his father “received a double-lung transplant from Cleveland Clinic” and was not discharged until mid-May of 2019.(ECF No. 9, pp.19-20.)
The evidence submitted by Petitioner, which includes a letter from a doctor at Cleveland Clinic's Lunch Transplant Program, demonstrates that Petitioner's father was admitted to Cleveland Clinic on March 10, 2019, and discharged from The Transplant House on April 29, 2019. (ECF No. 9-5.)
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. Holland, 560 U.S. at 649 (citing Pace, 544 U.S. at 418). See also Ross v. Varano, 712 F.3d 784, 798-804 (3d Cir. 2013); United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013); Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). “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). The Third Circuit has advised that:
“[t]here are no bright lines in determining whether equitable tolling is warranted in a given case.” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011).
Nevertheless, “courts must be sparing in their use of equitable tolling, ” Seitzinger v. Reading Hosp. & Medical Ctr., 165 F.3d 236, 239 (3d Cir. 1999), and should do so “only when the principles of equity would make the right application of a limitation period unfair.” Miller [v. New Jersey State Dept. of Corr.], 145 F.3d [616, 618 (3d Cir. 1998)].Sistrunk, 674 F.3d at 190. “[E]ven in situations in which equitable tolling initially applies, a party must file suit within a reasonable period of time after realizing that such a suit has become necessary.” Walker v. Frank, 56 F. A'ppx 577, 582 (3d Cir.2003) (citing Hentosh v. Herman M. Finch University of Health Sciences, 167 F.3d 1170, 1175 (7th Cir. 1999)). “A grant of equitable tolling, unlike statutory tolling, does not shift the deadline so that each day of tolling results in a one day postponement of the deadline.” Ragan v. Horn, 598 F.Supp.2d 677, 680 (E.D. Pa. 2009) (citing Phillips v. Heine, 984 F.2d 489, 492 (D.C.Cir. 1993)). “Rather, once the ‘extraordinary circumstances' justifying equitable tolling have disappeared, the petitioner must file as soon as ‘reasonably possible'”. Id. (quoting Walker, 56 Fed.Appx. at 581-82). “The United States Court of Appeals for the Third Circuit has suggested that one month is a sufficient period of time for a petitioner to file a pro se habeas petition.” Mitchell v. Beard, No. 06-4746, 2010 WL 1135998, at *1 n.3 (E.D. Pa., 2010) (citing Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003)). The Third Circuit has also held that eleven months is an unreasonable time to wait to file a habeas corpus petition. Id. (citing Walker, 56 Fed.Appx. at 582 n.5).
Petitioner does not state what day his attorney emailed his father to inform him of the Pennsylvania Supreme Court's decision on his petition for allowance of appeal, nor does he provide this Court with evidence, either by way of an affidavit or a copy of the aforementioned email, that demonstrates that his attorney informed his father, but not him, of the state court's unfavorable decision and on what day that occurred. Furthermore, despite the fact that Petitioner states that it was “impossible” for his father to inform him of the denial of the petition for allowance of appeal because he was receiving a double-lung transplant at the Cleveland Clinic, Petitioner has failed to demonstrate such an impossibility. Petitioner does not state the day his father received the email from the attorney, only that it was “sometime after said denial” of his petition for allowance of appeal. However, his petition for allowance of appeal was denied on February 26, 2019 and his father was not admitted to Cleveland Clinic for his procedure until March 10, 2019. Without knowing the day the email was sent, the Court cannot assume that it was in fact impossible for Petitioner's father to inform his son of the denial of the petition for allowance of appeal as he could have been notified before he was admitted for his procedure or even shortly after he was discharged from The Transplant House on April 29, 2019, both of which occurred before the day Petitioner alleges he was notified, on June 4, 2019.
However, even taking Petitioner's allegations as true, the undersigned does not find the instant matter to be one of the “rare situation[s] where equitable tolling is demanded by sound legal principals as well as the interests of justice.” Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). In addressing the “extraordinary circumstances” prong for equitable tolling in non-capital cases, the Third Circuit found that a prisoner's allegation of delayed notice of the Pennsylvania Supreme Court's disposition of his petition for allowance of appeal did not constitute extraordinary circumstances required to warrant equitable tolling. See LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005). According to the court, neither the fact that the petitioner did not receive personal notice of the Pennsylvania Supreme Court's denial of his petition, nor petitioner's attorney's failure to timely notify him of the denial, constituted extraordinary circumstances to warrant equitable tolling of the limitations period for filing a habeas petition. Id. In fact, district courts in the Third Circuit have consistently rejected claims of equitable tolling solely based on an attorney's failure to provide their client with notice of a state court's unfavorable decision finding them to be the type of “garden variety attorney neglect” that does not amount to an extraordinary circumstance. See Pennington v. Tice, No. 17-cv-0330, 2018 WL 7683408, at *5 (E.D. Pa. Jan. 29, 2018); Howard v. Kerestes, No. 2:14-cv-1234, 2016 WL 3455372, at *3 (W.D. Pa. May 26, 2016); Etienne v. Sobina, No. 10-5522, 2011 WL 3497337, at *5 (E.D. Pa. Aug. 10, 2011); London v. Miner, No. 07-10, 2008 WL 2952860, at *4 (W.D. Pa. July 30, 2008); Painter v. Wilson, No. 05-588, 2006 WL 3489792, at *2 (W.D. Pa. Nov. 30, 2006); Casiano v. Folino, 2006 WL 1030246, at *1 (E.D. Pa. Apr. 19, 2006); Smith v. Gillis, No. 03-6186, 2004 WL 573957, at *3 (E.D. Pa. Mar. 4, 2004); Poller v. Kyler, No. 02-CV-982, 2003 WL 22025882, at *2 (E.D. Pa. Aug. 26, 2003). Accordingly, even if Petitioner's attorney failed to notify him directly of the Pennsylvania Supreme Court's denial of his petition for allowance of appeal, this failure alone, which in the undersigned's opinion amounts to simple attorney neglect rather than an instance of serious attorney misconduct that courts have found could rise to the level of an extraordinary circumstance, see Holland v. Florida, 560 U.S. 631 (2010), is not an extraordinary circumstance that warrants equitable tolling.
Finally, the undersigned notes that the more likely explanation for why Petitioner's Petition was untimely filed is found in Petitioner's Brief in Support of his Petition wherein he states that on June 18, 2019, which coincidentally is the day Petitioner signed and mailed his Petition to this Court, his attorney advised him in a phone call that he provided him with incorrect advice about the time period to file a federal petition for writ of habeas corpus and that he should “immediately file” a petition with the federal court. See ECF No. 9, pp.23-24. Even if this were the true reason for Petitioner's untimely filing of his Petition, courts have “consistently rejected the argument that an attorney's mistake in determining the date a habeas petition is due constitutes extraordinary circumstances for purposes of equitable tolling.” Johnson v. Hendriks, 314 F.3d 159, 163 (3d Cir. 2002) (citing cases and ultimately finding that attorney's erroneous written advice regarding date of the AEDPA deadline did not constitute extraordinary circumstances warranting equitable tolling, even though petitioner relied on counsel's advice); see also Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (“In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the ‘extraordinary' circumstances required for equitable tolling”). Accordingly, such a situation would not entitle Petitioner to equitable tolling anyway.
As Petitioner has failed to meet his burden of demonstrating extraordinary circumstances sufficient to warrant equitable tolling, it is not necessary to determine whether he has also demonstrated that he has been pursuing his rights diligently, as a showing of both is required before equitable tolling will be granted. Thus, it is recommended that the Petition be dismissed as untimely.
2. Alternatively, the Petition should be denied.
Alternatively, even if the Petition is not found to be untimely, it is recommended that the Petition be denied because Petitioner is not entitled to habeas relief on his claims of ineffective assistance of counsel. As previously noted, Petitioner raises four claims of ineffective assistance of counsel in his Petition, including: (1) failing to attend the Sexual Offenders Assessment Board Hearing and advise him of his right to remain silent during such assessment, at which Petitioner incriminated himself by confessing to other criminal acts for which he was later charged; (2) failing to obtain mental health evaluation reports and/or a psychiatric evaluation to obtain a more favorable sentence for Petitioner despite being aware that he had previously received psychiatric treatment; (3) failing to obtain a psychiatric evaluation of Petitioner because, according to Petitioner, he has impulse control disorder which caused him to enter an involuntary guilty plea; and (4) failing to “suppress” a letter between the judge and an independent citizen. (ECF No. 4.)
As to Petitioner's first claim of ineffective assistance regarding his attorney's failure to attend Petitioner's Sexual Offenders Assessment Board Hearing and advise him of his right to remain silent during such assessment, the Superior Court determined that such claim was not cognizable under the PCRA pursuant to Commonwealth v. Masker, 34 A.3d 841 (Pa. Super. 2011). See ECF No. 13-5, pp.7-8. Since the Superior Court did not adjudicate this claim on the merits because it determined that it was not cognizable, AEDPA's standard of review found in 28 U.S.C. § 2254(d) does not apply to this Court's review of it and the Court reviews the claim de novo. See, e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). However, even under a de novo standard of review, the undersigned finds that the claim would be subject to denial for the same persuasive reasons the PCRA court gave when it denied this claim in its thorough Opinion and Order dated December 12, 2017.
As to Petitioner's second and third claims of ineffective assistance, the Superior Court found that Petitioner had not established that he was prejudiced by his attorney's failure to obtain mental health records and a psychiatric evaluation of Petitioner prior to entering his plea because Petitioner did not present any evidence to the PCRA court to substantiate his claims that he suffers from an impulse control disorder or any other mental health disorder. The undersigned finds that the Superior Court's decision clearly withstands AEDPA review as it is neither “contrary to” or an “unreasonable application of' Strickland v. Washington, 466 U.S. 668 (1984), nor it is an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d).
Finally, as to Petitioner's fourth claim of ineffective assistance, that his attorney was ineffective for failing to “suppress” a letter sent to the judge from a concerned citizen, this claim is unexhausted because Petitioner did not pursue it on appeal after it was denied by the PCRA court and it is procedurally defaulted because he would be barred from going back and doing so now. See 28 U.S.C. § 2254(b); see also Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012) (“Procedural default occurs when a claim has not been fairly presented to the state courts (i.e., is unexhausted) and there are no additional state remedies available to pursue . . . or, when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule ....”) (internal citations omitted). Additionally, Petitioner has demonstrated neither cause and prejudice, nor a fundamental miscarriage of justice, which would allow this Court to consider the merits of Petitioner's procedurally defaulted claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
For these reasons, the Petition should be denied in the event that the Court determines that it is not subject to dismissal as untimely.
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. As provided for in 28 U.S.C. § 2253, “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “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, 529 U.S. at 484. 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. 4) filed by Petitioner Ethan Andrew Hannold be dismissed as untimely or, in the alternative, be denied. It is also recommended that a certificate of appealability be denied.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Petitioner shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Petitioner's failure to file timely objections will constitute a waiver of his appellate rights.