Opinion
2:18-cv-548
07-12-2018
VAUGHN E. JAMES, KC-6039 Petitioner, v. STEPHEN A. ZAPPALA, et al., Respondents.
REPORT and RECOMMENDATION I. Recommendation:
It is respectfully recommended that the Motions to Dismiss submitted on behalf of Commonwealth of Pennsylvania (ECF No.8) and the District Attorney of Allegheny County Pennsylvania (ECF No. 19) be granted as the instant petition is untimely, and because reasonable jurists could not conclude that a basis to appeal exists, that a certificate of appealability be denied. II. Report:
Presently before the Court for disposition are the respondents' motions to dismiss.
Vaugh E. James, an inmate at the State Correctional Institution at Mercer has presented a petition for a writ of habeas corpus. James is presently serving an eleven to twenty-two year sentence imposed on July 18, 2011 following his entry of a plea of guilty to charges of manufacture/delivery/possession with intent to deliver a controlled substance at No. CP-02-CR-990-2011 in the Court of Common Pleas of Allegheny County, Pennsylvania.
The procedural history of his prosecution is set forth in the August 19, 2016 Memorandum of the Superior Court (ECF No. 19-2, Appx. pp. 282-288):
On July 18, 2011, Appellant was sentenced...
Appellant did not file a direct appeal. On March 2, 2012. Appellant filed a timely pro se PCRA petition... Counsel was allowed to withdraw and PCRA relief was denied. Appellant filed a pro se notice of appeal and raised numerous issues on appeal, including a claim that
the restitution award was improper. We agreed with that position on the basis that the imposition of restitution violated the terms of the plea agreement. Upon remand, the trial court struck all restitution. [See: Order of January 5, 2015, Appx. p. 205].
On April 14, 2015, Appellant filed his second petition seeking post-conviction relief by arguing that his sentence was unconstitutional as it included application of mandatory minimum sentences that were unconstitutional under Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the United States Supreme Court held that any fact, other than the existence of a prior conviction, that invokes application of a mandatory minimum sentence must be submitted to a jury and proven beyond a reasonable doubt. Various mandatory minimum sentencing provisions, including the one applied herein, have been declared void and unconstitutional under Alleyne, but the cases were direct appeals from imposition of a judgment of sentence
On April 22, 2015, the PCRA court herein issued notice of its intent to dismiss the petition without a hearing, and, on May 19, 2015, it denied PCRA relief. This pro se appeal followed...
Before we can address the merits of any of Appellant's positions, we must determine whether Appellant's April 14, 2015 PCRA petition was timely file as that issue implicates our jurisdiction. If a PCRA petition is untimely, "neither this Court nor the trial court has jurisdiction over the petition." ...
Any PCRA petition has to be filed within one year of the date the defendant's judgment becomes final unless an exception to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must determine when Appellant's judgment of sentence became final. "A judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not file a direct appeal from his July 18, 2011 judgment of sentence, that sentence became final thirty days later, or on August 17, 2011. Appellant had until August 17, 2012, to file a timely PCRA petition, and his April 14, 2015 petition is untimely.
There are three exceptions to the one-year time bar of § 9545: 1) governmental officials interfered with presentation of the claim; 2) the facts underlying the claim were unknown to the defendant and could not have been discovered by the exercise of due diligence; and 3) the right asserted is a constitutional right that was recognized by our
Supreme Court or the United States Supreme Court after a defendant's judgment of sentence became final and the Supreme Court or the United States Supreme Court has held that right to apply retroactively ... To invoke an exception, the petitioner must plead and prove it... In addition, any exception must be raised within sixty days of the date the claim could have been presented...
Appellant does not specifically invoke the newly-recognized constitutional right exception to the PCRA time requirements. He simply notes that the mandatory minimum sentencing provision in question, as well as others, have been struck down in their entirety as unconstitutional under Alleyne and that his sentence is unconstitutional and illegal...
Our Supreme Court recently ruled that Alleyne does not apply retroactively to attacks upon mandatory minimum sentences advanced on collateral review ... Appellant cannot, by means of a PCRA petition attack the validity of his sentence on the bases that it included imposition of mandatory minimum sentences that were rendered unconstitutional under Alleyne.
Additionally, an attack to the legality of a sentence, even though non-waivable, still must be brought pursuant to a timely PCRA petition... Thus, Appellant's assertion that he is serving an illegal sentence fails to overcome the PCRA's time bar.
Moreover, even to the extent that we treat Appellant's citation to Alleyne as leveling a basis to circumvent the time bar, his claim fails for another reason. Appellant failed to satisfy the threshold requirement of asserting the statutory exception within sixty days of the date the claim could be presented. See 42 Pa.C.S. § 9545(b)(2). The United States Supreme Court decided Alleyne on June 17, 2013, and Appellant did not file his petition seeking relief under its provisions until April 14, 2015, nearly two years after that case was decided. Appellant cannot obtain relief under Alleyne under this untimely filed PCRA. Hence, we affirm the denial of relief.
See: Appendix at pp. 283 -287. --------
It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:
(1) A 1-year period of limitation shall apply to the 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;An untimely post-conviction petition is not "properly filed". Pace v. DiGulglielmo, 544 U.S. 408 (2005).
(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.
In the instant case, sentence was imposed on July 18, 2011 and no appeal was pursued. For this reason his conviction became final on August 17, 2011 when the time in which to appeal expired. Rule 902, Pa.R.App.P.; Gonzalez v. Thaler, 132 S.Ct. 641 (2012). The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here. The petitioner did not seek post-conviction relief until March 2, 2012 or over six months after he could have done so. The post-conviction determination was affirmed in part and reversed and remanded for resentencing only as to the issue of restitution on October 24, 2014. On January 5, 2015 the restitution portion of the sentence was vacated.
On August 14, 2015 a second post-conviction petition was filed relying on Alleyne. That petition was dismissed on May 18, 2015 and on appeal the Superior Court ruled on August 19, 2016 that the second petition was untimely and properly dismissed unless James could invoke one of the exceptions to the requirement that a post-conviction petition be filed within one year of the time when the conviction becomes final as set forth in 42 Pa.C.S.A. §9545(b). Specifically, the Court relied on Section 9545(b)(2) which provides an exception to the one year rule occurs when a constitutional right is newly recognized provided the issue is raised within sixty days of the date the claim could have been presented. In the present case, Alleyne was decided on June 17, 2013 and the claim was not raised until August 14, 2015 which is clearly in excess of the sixty day period. As a result his petition was deemed untimely and dismissed as such on August 19, 2016; allowance of appeal was denied on May 2, 2017 and certiorari was denied on October 7, 2017.
The instant petition was received on May 1, 2018. However, under Pennsylvania procedural law, his second post-conviction petition was untimely and since no remedy now exists procedural default has occurred and there is no basis for relief here.
Additionally, since his last timely state court proceeding ended in 2014, his petition filed here in 2018 is time barred unless a basis for equitable tolling is demonstrated. In paragraph 18 of the petition, James seeks equitable tolling by alleging,
He was prevented from asserting his right to file an appeal, and receive the benefits of the "Supremacy Clause" and the mandatory enforcement of U.S. Supreme Court decisions during collateral appeal. Herein "extraordinary circumstances exist" to warrant an equitable tolling of the statute of limitations period set forth in 28 U.S.C. § 2242(b)(1)...Other than his bald assertions that extraordinary circumstances exist, there is nothing in the record which supports that allegation. Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir. 2013) ("the fact that a petitioner is proceeding pro se does not insulate him from the 'reasonable diligence' inquiry and his lack of legal knowledge or legal training does not alone justify equitable tolling."). No demonstration of extraordinary circumstances is made here.
Accordingly, it is recommended that the respondents' motions to dismiss be granted.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections within fourteen (14) days of this date and mailing them to United States District Court, 700 Grant Street, Pittsburgh PA 15219-1957. Failure to file timely objections will waive the right to appeal.
Respectfully submitted,
s/ Robert C. Mitchell
United States Magistrate Judge Filed: July 12, 2018