Opinion
Civil Action No. 16-211 Erie
03-14-2017
JOSHUA RYAN MOSLEY, Petitioner, v. JOHN WETZEL, et al., Respondents.
District Judge Barbara Rothstein
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. RECOMMENDATION
It is respectfully recommended that the petition for a writ of habeas corpus filed by state prisoner Joshua Ryan Mosley (the "Petitioner") be denied, and that a certificate of appealability be denied with respect to all claims. II. REPORT
The Respondents filed the state court record ("SCR") in hardcopy format (see ECF No. 10). Those documents are numbered 1 through 34, and shall be cited to as "SCR No. ___."
The Superior Court of Pennsylvania summarized the background of his cases as follows:
On January 6, 2013, [the Petitioner] and Jose Antonio Diaz ("Diaz") entered the Modern Adult store in Erie, Pennsylvania. After perusing the movies in the store, [the Petitioner], who was wearing a distinctive green jacket with a fur-trimmed hood, approached the store clerk, pointed a gun at his face and demanded money and products. [the Petitioner] and Diaz took approximately $300.00 in cash, 94 bottles of Sonic Zero, and 49 packets of Purple Diesel. [The Petitioner] and Diaz then left the adult store and ran to the City Mission Shelter, which was approximately two blocks from the store.
Officer Jerry Devine ("Officer Devine") received a radio dispatch regarding the robbery and a description of the two perpetrators. Upon arriving at the adult store, a bystander on the street told Officer Devine that the perpetrators had run into the City Mission Shelter. Officer Devine entered the shelter where he encountered [the Petitioner]
and Diaz. [The Petitioner] and Diaz were found in possession of a gun, money, and the stolen items from the store. The police arrested [the Petitioner] and Diaz.Commonwealth v. Mosley, No. 1946 WDA 2014, 2015 WL 7078907, *1 (Pa.Super.Ct. June 3, 2015) (footnote omitted) ("Mosley II").
Following a jury trial, [the Petitioner] was convicted of criminal conspiracy, robbery, theft by unlawful taking, receiving stolen property, possessing instruments of crime, and terroristic threats. On June 24, 2013, the trial court sentenced [the Petitioner] to an aggregate prison term of eight to sixteen years.
On May 7, 2014, the Superior Court of Pennsylvania issued an opinion and order in which it affirmed the Petitioner's judgment of sentence. (SCR No. 23, Commonwealth v. Mosley, No. 1243 WDA 2013, slip op. at 1-9 (Pa.Super.Ct. May 7, 2014) ("Mosley I")). The Petitioner had 30 days-until June 6, 2014-to file a petition for allowance of appeal (a "PAA") with the Pennsylvania Supreme Court. Pa.R.A.P. 1113(a). He did not file a PAA. Accordingly, his judgment of sentence became final under both state and federal law on June 6, 2014. See 42 Pa.C.S. § 9545(b)(3) ("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."); Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (same).
On July 17, 2014, the Petitioner filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (SCR No. 24). The PCRA court appointed the Petitioner counsel. Counsel subsequently filed a petition for leave to withdraw and an accompanying "no-merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) (en banc). (SCR No. 27). "The PCRA court issued a Notice of Intent to Dismiss without a Hearing, but denied the Petition to Withdraw. On October 23, 2014, the PCRA dismissed" the PCRA petition. Mosely II, 2015 WL 7078907 at *1.
The Petitioner filed an appeal with the Superior Court. On June 3, 2015, the Superior Court issued an opinion and order (Mosely II) in which it affirmed the PCRA court's decision. The Petitioner did not file a PAA with the Supreme Court of Pennsylvania. Accordingly, his PCRA proceeding concluded on or around July 3, 2015, the date on which the time to file a PAA expired.
On August 19, 2016, this Court received for filing the Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (ECF No. 3). He raises the following three claims:
Importantly, the Respondents contend that the petition should be considered to have been filed, at the very earliest, on August 19, 2016. (ECF No. 9 at 4, 6-7). The Petitioner did not file a reply and contest the Respondents' assertion. And although the Petitioner declared under penalty of perjury that he placed his petition in the prisoner mailing system on May 16, 2016 (ECF No. 3 at 22), that cannot be true. That is because he mailed both the petition and his motion for leave to proceed in forma pauperis (ECF No. 1) in the same envelope. His motion for leave to proceed in forma pauperis was signed by a records officer at SCI Forest on August 16, 2016. (ECF No. 1 at 2). In addition, the printout of the monthly account statement attached to the motion was printed on August 16, 2016. (Id. at 3-4). That account statement also does not appear to reflect that there was the $1.99 postage deduction on or around May 16, 2016. (Id.)
The postage date on the envelope appears to contain the date "08/17/2016," although it is not entirely clear. (ECF No. 12 at 1). That date would make sense because some of documents contained in that envelope were dated the day before (August 16, 2016). The postage date perhaps could be read as "06/17/2016," but that does not matter because, as explained below, AEDPA's statute of limitations expired on May 23, 2016.
Claim One: Petitioner was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, where his trial counsel failed to move for suppression and/or exclusion of evidence as searched for and seized from Petitioner's person in the absence of a valid body warrant and/or exigent circumstances.
Claim Two: Petitioner was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, where his trial counsel failed to move for suppression and/or exclusion of a pre-trial identification of Petitioner where said identification was obtained by a procedure so unnecessarily suggestive and conductive to irreparable mistaken identification as to deny petitioner due process of law.
Claim Three: Petitioner was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, where his trial counsel failed to move for suppression and/or exclusion of inculpatory statements as
allegedly made by Petitioner in response to police questioning which was not preceded by Petitioner being advised of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966).(ECF No. 3 at 10, 12, 14).
In their answer (ECF No. 9), the Respondents contend that the Petitioner's claims must be denied because they are untimely under AEDPA's one-year statute of limitations, which is set forth at 28 U.S.C. § 2244(d)(1). The Petitioner did not file a reply. Local Rule 2254.E.2 ("Although not required, the petitioner may file a Reply (also known as "a Traverse") within 30 days of the date the respondent files its Answer.")
B. Discussion
AEDPA requires, with a few exceptions not applicable here, that habeas corpus claims under 28 U.S.C. § 2254 be filed within one year of the date the petitioner's judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). It also provides that "[t]he 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." 28 U.S.C. § 2244(d) (emphasis added).
There is no basis to use any of the other provisions triggering the one-year limitations period. The Petitioner has not established that he suffered any impediment to filing his federal petition. 28 U.S.C. § 2244(d)(1)(B). Nor has he shown that any of his claims are based on a new constitutional right recognized by the United States Supreme Court and made retroactively applicable to cases on collateral review. Id. at § 2244(d)(1)(C). Finally, he has not shown that he filed his petition within one year of the date "the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2244(d)(1)(D).
As set forth above, the Petitioner's judgment of sentence became final on June 6, 2014. On July 17, 2014, he filed his PCRA petition. In accordance with § 2244(d)(2), that PCRA proceeding statutorily tolled AEDPA's limitations period on that date. At that point, approximately 41 days (from June 6, 2014, through July 16, 2014) had already expired from AEDPA's statute of limitations. The Petitioner's PCRA petition proceeding concluded on or around July 3, 2015, which is the last date he could have filed a PAA from the Superior Court's decision in Mosley II. See Lawrence v. Florida, 549 U.S. 327, 331-36 (2007); Swartz, 204 F.3d at 419-20. AEDPA's limitations period began to run again the next day, on July 4, 2015. Since 41 days had already expired from the limitations period, the Petitioner had 324 more days-until on or around May 23, 2016-to file a timely federal habeas petition. He did not file his federal habeas petition by that deadline and, therefore, his claims should be denied because he filed them outside of AEDPA's statute of limitations.
The Petitioner has not identified any other state court filing that was a "properly filed application for State post-conviction or other collateral review" that would serve to statutorily toll the limitations period under § 2244(d)(2). --------
The Supreme Court has held that AEDPA's statute-of-limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010) (emphasis added). A petitioner is entitled to equitable tolling only if he shows both that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at 649. See also United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013); Ross v. Varano, 712 F.3d 784, 798-804 (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 United States Court of Appeals for the Third Circuit has explained:
"There 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.
The Petitioner has not met his burden of demonstrating that he is entitled to equitable tolling. He does not identify any "extraordinary circumstance" that stood in his way of filing any of his claims within AEDPA's statute of limitations, nor has he shown that he acted with the required diligence with respect to any of his claims. He may not have understood the implications of waiting so long to file his federal habeas corpus petition, but it is well established that "lack of legal knowledge or legal training does not alone justify equitable tolling." Ross, 712 F.3d at 800 (citations omitted).
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. 28 U.S.C. § 2253 provides that "[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." "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). Applying that standard here, jurists of reason would not find it debatable whether the Petitioner's claims should be denied as untimely. Accordingly, a certificate of appealability should be denied. III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Petitioner's claims be denied, and that a certificate of appealability be denied with respect to all claims.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge Dated: March 14, 2017 cc: The Honorable Barbara Rothstein
United States District Judge