Opinion
Civil Action 21 - 1061
06-22-2022
PAUL KENDRICK, Petitioner, v. MICHAEL ZAKEN and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.
Christy Criswell Wiegand, 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) be dismissed as untimely and 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 Paul Kendrick (“Petitioner”) pursuant to 28 U.S.C. § 2254. (ECF No. 4.) The Petition challenges Petitioner's judgment of sentence out of the Court of Common Pleas of Allegheny County after he was found guilty of first-degree murder, conspiracy to commit murder, and person not to possess a firearm at CP-02-CR-13583-2014 on May 26, 2015. On August 24, 2015, Petitioner was sentenced to a mandatory term of life imprisonment without parole for first-degree murder, and to consecutive terms of life without parole at the criminal conspiracy count and 2½ to 5 years imprisonment at the firearms count. Petitioner's postsentence motions were denied on December 10, 2015.
The docket sheets for Petitioner's criminal case and appeals can be found online at ujsportal.us/CaseSearch and on the docket at ECF No. 10-1, pp.1-21.
Petitioner filed a direct appeal. On May 18, 2018, the Superior Court of Pennsylvania affirmed the judgment in part but remanded for resentencing on the criminal conspiracy count. (ECF No. 10-3, pp.1-11.) The Supreme Court of Pennsylvania denied the petition for allowance of appeal on October 3, 2018. (ECF No. 10-3, p.12.)
Petitioner was resentenced on February 11, 2019. The only modification was his sentence for criminal conspiracy, which was changed to 10 to 20 years imprisonment consecutive to the life without parole sentence for first-degree murder. (ECF No. 10-3, p.13.)
On July 26, 2019, Petitioner filed a timely pro se petition pursuant to Pennsylvania's Post-Conviction Relief Act (“PCRA”). (ECF No. 10-3, pp.14-46.) Counsel was appointed who ultimately filed a No Merit Letter and moved to withdraw on December 13, 2019. (ECF No. 104, pp.1-36.) On December 17, 2019, counsel's motion was granted and the PCRA court advised Petitioner of its notice of intent to dismiss the petition. (ECF No. 10-4, pp.37-38.) The PCRA petition was dismissed on September 1, 2020. (ECF No. 10-4, p.39.) Petitioner did not file an appeal challenging the dismissal of his PCRA petition.
Petitioner filed the instant Petition in this case on August 8, 2021. His Petition raises three claims: (1) the evidence was insufficient to sustain the convictions of first-degree murder and criminal conspiracy, (2) the jury instruction pertaining to conspiracy/accomplice liability was erroneous, and (3) the sentence is illegal because the murder and conspiracy convictions should have merged for sentencing purposes. For the following reasons, the Petition should be dismissed as untimely.
This is the filing date pursuant to the prison mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988).
A. Statute of Limitations
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.
B. Discussion
First, 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 13, 2019 (30 days after he was resentenced on February 11, 2019, and the last day Petitioner had to file a direct appeal to the Superior Court of Pennsylvania). 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 period was March 14, 2019, and, absent any tolling for “properly filed” applications for post-conviction relief, Petitioner had until March 14, 2020 to file a timely federal habeas petition challenging his judgment of sentence. Because Petitioner did not file his Petition in this case until August 8, 2021, the Court must next determine whether Petitioner can take advantage of the tolling provision in section 2244(d)(2).
Petitioner does not argue, nor do his claims suggest, that an alternative “trigger date” should be utilized.
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, 134 days of Petitioner's one-year statute of limitations period expired after Petitioner's judgment of sentence became final and before Petitioner filed a properly filed PCRA petition on July 26, 2019. After the filing of the PCRA petition, Petitioner's one-year statute of limitations period was tolled until October 1, 2020, which was the final day Petitioner had to file an appeal following the dismissal of his PCRA petition on September 1, 2020. At that time, Petitioner still had 231 days (365-134=231) remaining of his one-year statute of limitations period. The statute started to run again on October 2, 2020, and it fully expired 231 days later, on May 20, 2021. However, as previously stated, Petitioner did not file his Petition in this case until August 8, 2021. 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). Petitioner, however, has not argued for the applicability of either. As such, the Petition should be dismissed since it was untimely filed.
The undersigned notes that even if the Petition were not time barred then it would be subject to dismissal for substantially the same reasons set forth by the Respondents in their Answer.
C. Certificate of Appealability
A court should issue a certificate of appealability where a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “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 v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner has not made the requisite showing in this case. Accordingly, a certificate of appealability should be denied.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 4) be dismissed as untimely and 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.