Opinion
Civil Action 21-737
01-25-2022
ADAM PASTORIES, Petitioner, v. BARRY SMITH and THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.
District Judge Christy Criswell Wiegand
REPORT AND RECOMMENDATION
ECF NO. 15
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus, ECF No. 15, be granted. It is further recommended that a certificate of appealability be denied.
II. REPORT
A. Background
On March 3, 2016, in the Court of Common Pleas of Allegheny County, Petitioner Adam Pastories entered a guilty plea to failure to comply with registration requirements under 18 Pa.C.S.A. §§ 4915.1(a)(1) and (a)(2). He was sentenced that day to an aggregate term of 4 to 8 years' imprisonment. Petitioner did not file a direct appeal from the judgment of sentence.
The criminal docket number is CP-02-CR-0011675-2015.
On January 17, 2018, Petitioner filed a petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. The PCRA court dismissed the petition as untimely. Petitioner appealed from that dismissal, but on December 27, 2018, the Pennsylvania Superior Court affirmed. Commonwealth v. Pastories, 203 A.3d 358 (Pa. Super. 2018) (unpublished memorandum). Petitioner subsequently filed another PCRA petition, which was also found to be untimely. Commonwealth v. Pastories, 226 A.3d 607 (Pa. Super. 2020) (unpublished memorandum). Subsequent PCRA petitions were dismissed by the PCRA court on February 8, 2021, and June 16, 2021.
Petitioner commenced this habeas litigation by lodging a petition on June 2, 2021. ECF No. 1. He subsequently paid the filing fee and the petition for writ of habeas corpus was filed on June 4, 2021. ECF Nos. 3, 4. On August 16, 2021, Respondents filed the instant Motion to Dismiss. ECF No. 15. Petitioner did not file a response. The motion is ripe for consideration.
B. Analysis
Respondents argues that the petition for writ of habeas corpus is untimely because it was filed after the applicable limitations period had expired. ECF No. 15 at 3-4. 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 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 section.28 U.S.C. § 2244(d).
The statute of limitations set forth in section 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.
In his petition, Petitioner “invokes 28 U.S.C. § 2244 (d)(1)(C)” and then baldly cites to five United States Supreme Court cases, apparently in any effort to suggest these decisions initially recognized the constitutional right(s) he asserts and that the “trigger date” for his claims is the date(s) of these decisions. ECF No. 4 at 14. For multiple reasons, these decisions do not affect the trigger date for Petitioner's claims. One readily discernible reason that these decisions have no effect on the relevant trigger date is that none of the cases is relevant to Petitioner's case or the claims he asserts in his habeas petition. A brief description of the relevant holdings of the cited cases readily reveals the same.
In McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), the Supreme Court held that the state of Oklahoma lacked jurisdiction to prosecute a member of the Seminole Nation for major crimes committed in “Indian country.” Petitioner was not prosecuted in Oklahoma and does not assert that his crimes took place in “Indian country.”
In Ramos v. Louisiana, 140 S.Ct. 1390 (2020), the Supreme Court held that the Sixth Amendment right to a jury trial, as incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict in order to convict a defendant of a serious offense. Petitioner was not convicted at a trial. He entered a guilty plea.
In McCoy v. Louisiana, 138 S.Ct. 1500 (2018), the Supreme Court held that the Sixth Amendment guarantees the defendant the right to choose not to admit his guilt at trial, even if defense counsel believes it is the defendant's best chance to avoid the death penalty. Again, Petitioner did not have a trial.
In Garza v. Idaho, 139 S.Ct. 738 (2019), the Supreme Court held that, even if a defendant has signed an “appeal waiver, ” forgoing some, but not all, appellate claims, if counsel's deficient performance costs the defendant an appeal the defendant would have otherwise pursued, prejudice is presumed. None of Petitioner's claims concerns the lack of an appeal or the existence of an appeal waiver.
Finally, in United States v. Haymond, 139 S.Ct. 2369 (2019), the Supreme Court extended the holdings of prior cases to a single federal sentencing statute and its holding was, by its own terms, limited to that statute. See Hernandez v. Smith, 2020 U.S. Dist. LEXIS 178543, at *28-30 (E.D. Pa. 2020) (finding that Haymond did not expressly recognize a new right and explaining its inapplicability to state court inmate's case). Petitioner was not sentenced under the relevant (or any) federal statute.
Rather, because the three grounds for relief in the petition concern the entry of his guilty plea and the imposition of his judgment of sentence, the “trigger date” for Petitioner's claims is the date on which his judgment of sentence became final. That date was on or about April 4, 2016, at the expiration of the time for filing a direct appeal from the judgment of sentence. Pa.R.A.P. 903(a); 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, absent any applicable tolling, Petitioner had until April 4, 2017, to file a timely federal habeas petition challenging his judgment of sentence. Petitioner did not lodge his petition in this case until June 2, 2021, more than four years later. Accordingly, the Court must next determine whether Petitioner can take advantage of the tolling provision in section 2244(d)(2).
In Ground One, Petitioner asserts a claim based on his innocence of the crimes. ECF No. 4 at 5-7. In Ground Two, Petitioner asserts a claim based on plea counsel's ineffectiveness in permitting Petitioner to enter an unknowing guilty plea. Id. at 7-8. In Ground Three, Petitioner asserts a claim based on the illegality of the sentence imposed. Id. at 8-10.
Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a “properly filed” state post-conviction proceeding. As set forth above, none of Petitioner's PCRA petitions was timely filed; thus, the tolling provision in sections 2244(d)(2) is not applicable.
However, in a final effort to avoid the time-bar of his claims, Petitioner invokes McQuiggin v. Perkins, 569 U.S. 383 (2013), and asserts that he is actually innocent. ECF No. 4 at 13-14. As this Court has recently explained:
In McQuiggin, the Supreme Court recognized that the actual-innocence “gateway” to federal habeas review developed in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) for procedurally defaulted claims extends to cases where a petitioner's claims would otherwise be barred by the expiration AEDPA's one-year statute of limitations.
In Schlup, the Supreme Court held that a viable claim of actual innocence requires a petitioner “to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” 513 U.S. at 324. Importantly, “‘[a]ctual innocence' means factual innocence, not mere legal insufficiency.” Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)).Scott v. Zappala, 2021 U.S. Dist. LEXIS 200822, at *35 (W.D. Pa. 2021).
It is of note that some courts have rejected actual innocence claims based on McQuiggin where the petitioner, like Petitioner here, pled guilty to the offense in question. Brown v. Superintendent Houser, 2021 U.S. Dist. LEXIS 163345, at *8-9 (M.D. Pa. 2021) (citing cases).
A generous reading of the petition and the record reveals that Petitioner asserts he is innocent of the crimes to which he pled guilty because, as applied to him, the registration requirements with which he failed to comply violated the ex post facto clause of the United States Constitution. ECF No. 4 at 5, 13-14. This assertion of actual innocence is an argument for legal innocence, not a claim of factual innocence premised on new evidence. See Thieme v. United States, 2020 U.S. App. LEXIS 36121, at *1 (3d Cir. 2021) (finding that an attack on the criminal statute as void for vagueness goes to legal, not factual innocence). Thus, it is insufficient to merit an equitable exception to the limitations period.
Petitioner raised a substantially similar argument in state court in the litigation of his first PCRA petition, but the petition was found to be untimely. ECF No. 15-1 at 19-25.
Thus, the claims asserted in the habeas petition are time-barred and the petition should be dismissed on that basis.
C. Certificate of Appealability
A certificate of appealability should be denied because Petitioner has not made a substantial showing of the denial of a constitutional right or shown that jurists of reason would disagree that the claims asserted his habeas petition are barred by AEDPA's statute of limitations. See, e.g., Slack v. McDaniel 529 U.S. 473 (2000) (explaining standard for grant of a certificate of appealability where court does not address petition on the merits but on some procedural ground); Walker v. Government of the Virgin Islands, 230 F.3d 82, 89-90 (3d Cir. 2000).
D. Conclusion
For the foregoing reasons, it is respectfully recommended that Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus, ECF No. 15, be granted. It is further recommended that a certificate of appealability be denied.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.