Opinion
2:16-cv-1478
03-14-2017
JAMAL TAIT JOHNSON, DY-8544, Petitioner, v. TAMMY FERGUSON, et al., Respondents.
REPORT and RECOMMENDATION
I. Recommendation:
It is respectfully recommended that the respondents' Motion to Dismiss (ECF No. 10) the petition for a writ of habeas corpus submitted by Jamal Tait Johnson be granted, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
II. Report:
Jamal Tait Johnson, an inmate at the State Correctional Institution-Benner Township, has presented a petition for a writ of habeas corpus (ECF No.1). Johnson is presently serving a six to twenty year sentence imposed upon a plea of nolo contendre to charges of possession with intent to deliver a controlled substance (cocaine) at Nos. CC-02-CR-8754 and 9809-1997 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on October 15, 1998 and post-sentence motions were denied by operation of law on February 22, 1999. No appeal was pursued.
The Superior Court stated "at docket number CP-02-CR-0008754-1997, Appellant pled nolo contendre to two counts of manufacturing, delivering, or possessing a controlled substance with the intent to deliver (PWID), and one count each of unauthorized sale or refill of a controlled substance, and possession of a controlled substance. 35 P.S. §780-113(a)(30), (a)(15), and (a)(16), respectively. At docket number CP-02-CR-0009809-1997, Appellant pled nolo contendre to one additional count of PWID. (Respondent's Exhibit 7, fn.1 and Exhibit B to the petition.)
As further observed by the Superior Court, "the trial court sentenced Appellant to three to ten years' imprisonment on one of the PWID convictions at docket number 8754-1997, and a consecutive three to ten years' imprisonment on the PWID count at docket number 9809-1997, for an aggregate judgment of sentence of 6 to 10 years'. No further penalty was imposed on the remaining convictions."(Id. at fn.2).
See: Petition at ¶¶1-6 and Respondents' Exhibit 1 at p.6.
See: Petition at ¶8.
On November 13, 2013, Johnson filed a post-conviction petition. That petition was dismissed on July 15, 2014 and a timely appeal was filed in the Superior Court in which the issues raised were:
Id. at ¶¶ 10-11.
I. Whether the PCRA court erred in finding that [] Appellant's PCRA petition was not timely filed under the purview of 42 Pa.C.S. § 9545(B)(1)(ii) and 42 Pa.C.S. §9545?On February 11, 2016, the Superior Court affirmed the denial of the post-conviction petition as untimely, noting
II. Whether the PCRA court erred in failing to exercise [its] inherent power to correct patent error(s) despite the absence of trad[it]ional jurisdiction, which has resulted in Appellant being sentenced[d] under the aggravated range as opposed to the standard range?
III. Whet[h]er the PCRA court erred in finding that the sentencing court did not err by imposing the instant sentence under the aggravated range as opposed to the standard range as ordered by the sentencing court?
Appellant acknowledges that he did not file the current PCRA petition within one year of his judgment of sentence becoming final... Appellant claims he meets the exception to the time-bar because he filed the current PCRA petition within 60 days of discovering the fact that the trial court departed from the sentencing guidelines in imposing his sentence.Leave to appeal to the Pennsylvania Supreme Court was denied on July 19, 2016.
We conclude that Appellant has not met his burden of proving that the newly discovered facts exception applies.
Instantly, at the time of his sentencing, Appellant was aware of the sentencing guidelines and any discrepancy between the guidelines and his sentence should have been apparent to him... Appellant has failed to plead or prove any explanation as to why, in the exercise of due diligence, he could not have learned of any alleged sentencing errors within the one-year period prescribed by the PCRA... Accordingly, we conclude that the record supported the PCRA court's determination that Appellant's PCRA petition was untimely and did not meet the time-bar exception...
See: Exhibits 5 and 8 to the Motion.
See: Exhibit 8 to the Motion.
See: Exhibit 9 to the Motion.
In the instant petition filed on September 27, 2016 Johnson contends he is entitled to relief on the following grounds:
1. Whether PCRA counsel's rendered ineffective assistance for failing to raise in the collateral petition, trial counsel's ineffectiveness who abandoned petitioner during his direct appeal, causing him to serve an illegal sentence, violating petitioner's 5th, 6th, 8th and 14th Amendment rights of the Constitution?
2. Whether the state courts erred in finding that the lower court did not err in failing to exercise its inherent power to correct patent errors despite the absence of traditional jurisdiction, which resulted in petitioner being sentenced above the recommendation by the trial court violating petitioner's Constitutional rights under the 5th, 6th, 8th and 14th Amendments of the Constitution.
See: Petition's Memorandum (ECF No. 2). --------
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 -An untimely post-conviction petition is not "properly filed". Pace v. DiGulglielmo, 544 U.S. 408 (2005).
(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.
In the instant case sentence was imposed on October 15, 1998; post-sentence motions were denied by operation of law on February 22, 1999 and no appeal was pursued. For this reason Johnson's conviction became final on March 24, 1999 when the time in which to seek appellate review expired. 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 November 13, 2013 or over fourteen years after he could have done so. That petition was denied as untimely; the denial of post-conviction relief was affirmed by the Superior Court and leave to appeal to the Pennsylvania Supreme Court was denied on July 19, 2016. The instant petition was filed on September 27, 2016. Thus, combining the delay in initially seeking post-conviction relief with the delay in seeking relief here, far in excess of the one year period in which to seek federal relief has expired, and the petition here is time barred unless Johnson can demonstrate an equitable basis for not imposing that bar.
In Holland v. Florida, 560 U.S. 631, 649 (2010), the Court reiterated,
We have previously made clear that a "petitioner" is "entitled to equitable tolling" only if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way" and prevented timely filing. (internal citation omitted).
In his response to the motion (ECF No.13), Johnson contends that although his trial counsel filed a post-sentence motion he was never notified of that fact, nor the disposition of the motion, and that counsel ignored his desire to file an appeal. Now, fourteen years later petitioner seeks to raise these issues. Clearly his lack of diligence in pursuing or attempting to pursue his remedies and the absence of extraordinary circumstances demonstrate that he is not entitled to equitable tolling.
In addition, Johnson contends that post-conviction counsel was ineffective for failing to raise the ineffectiveness of trial counsel. See: Martinez v. Ryan, 132 S.Ct. 1309 (2012). Specifically, he alleges that trial counsel was ineffective in failing to notify him of the fact that post-trial motions had been filed and denied, and in failing to pursue an appeal. These issue were not raised by post-conviction counsel, however, in light of the fact that the petitioner had entered pleas of nolo contendre, the only issues which could have been raised on appeal was that the plea was not knowingly, voluntarily and intelligently entered. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). Here, Johnson contends that counsel's actions or lack thereof are causing him to serve an illegal sentence, an issue discussed below. He does not challenge his plea. For this reason, this allegation is without merit.
In addition, where a state sentence is within the statutory range, a challenge to the length of that sentence is not subject to federal relief. Bozza v. United States, 330 U.S. 160, 166 (1947). In this case, petitioner entered his plea to two counts of manufacturing, delivering or possessing with intent to deliver a controlled substance and one count each of unauthorized sale or refill of a controlled substance and possession of a controlled substance, all in violation of 35 P.S. §780-113(a)(30), (a)(15) and (a)(16). The then existing statute, 35 P.S. §780-113 (Effective to January 23, 2000) provides for the imposition of not more than a ten years sentence for cocaine violations (35 P.S. 780-113(37)(f)(1.1). Thus, petitioner's two consecutive three to ten year sentences are encompassed within the statutory provisions and are not subject to a challenge here.
Thus, because the petition is untimely and the issues raised are meritless, it is recommended that the respondents' motion to dismiss (ECF No. 10) be granted, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
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: March 14, 2017