Opinion
Civil Action 21-1150
05-03-2023
RASHON RICHARDSON, Petitioner, v. ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Rashon Richardson Indiana County Jail Counsel for Respondent
Rashon Richardson Indiana County Jail Counsel for Respondent
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. 1) 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 Rashon Richardson (“Petitioner”) pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The Petition challenges Petitioner's judgment of sentence out of Allegheny County at CP-02-CR-0016670-2008. For the following reasons, it is recommended that the Court dismiss the Petition as untimely and deny a certificate of appealability.
A. Procedural Background
On June 28, 2008, Petitioner was charged by Criminal Information in the Court of Common Pleas of Allegheny County, Criminal Division, at CP-02-CR-0016670-2008, with one count of Contraband, two counts of Possession with Intent to Deliver a Controlled Substance, two counts of Possession of a Controlled Substance, and one count of Possession of Marijuana. (ECF No. 10-1, pp.13-17.)
On January 10, 2011, Petitioner, represented by Attorney Regina Brown of the Allegheny County Office of the Public Defender, entered a negotiated guilty plea at three separate Criminal Informations, including CP-02-CR-0016670-2008. Id., pp.19-28. That same day, he was sentenced at count 1, Contraband, to a term of eighty-four (84) months of probation to be served concurrently with the probation given at another case. At the remaining counts, he was found guilty without further penalty. Id., pp.29. At the conclusion of Petitioner's guilty plea and sentencing at all three cases, he was ultimately sentenced to an aggregate term of four (4) to eight (8) years of confinement to be followed by eight-four (84) months of probation. Id., pp.29-38. Petitioner filed no post sentence motions, nor did he file a direct appeal.
On December 17, 2019, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”). Id., pp.39-72. On May 19, 2020, Petitioner filed a petition for a Writ of Error Coram Nobis that was construed as another PCRA petition. Id. pp.73-76. The court issued an order appointing Attorney Charles R. Pass, III to represent Petitioner and directed that an amended petition be filed by October 5, 2020. Id., p.77. On July 20, 2020, Attorney Pass filed a Motion for Leave to Withdraw as Counsel under Commonwealth v. Turner, 568 A.2d 622 (Pa. Super. 1989), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Id., pp.78112. On August 17, 2020, the court granted Attorney Pass's motion to withdraw and issued a Notice of Intent to Dismiss Petitioner's PCRA petition. Id., pp.113-14. On September 21, 2020, Petitioner filed a pro se response to the court's Notice of Intent to Dismiss, and on November 4, 2020, the court dismissed the PCRA petition without a hearing. Id., p.115.
On April 16, 2021, Petitioner filed another pro se petition for Writ of Coram Nobis. Id., pp.116-120. On September 2, 2021, the court issued a Notice of Intent to Dismiss the petition, and the petition was thereafter dismissed without a hearing on October 19, 2021. Id., pp.121-22.
On August 24, 2021,prior to the state court's disposition of the aforementioned petition, Petitioner filed his Petition for Writ of Habeas Corpus in this case. (ECF No. 1.) The undersigned construes the following claims as being raised in the Petition: (1) Petitioner is actually innocent of the contraband charge because he did not know that the drugs were still in his pocket and because he did not have the ability to take the drugs out of his pocket since he was handcuffed, and he is innocent because the drugs were discovered in his pocket while he was in the jail's intake area and not actually inside the jail; (2) violation of double jeopardy; (3) ineffective assistance of counsel for failing to inform Petitioner that, if he proceeded to trial, the Commonwealth would have had to prove each and every element of the crimes charged and there was no evidence that he intended to deliver the drugs that he possessed or that he knowingly possessed a controlled substance that he tried to sneak into the jail; and (4) his guilty plea was not knowingly and voluntarily made because the court never explained the nature of the charges against him. Id. Respondent filed an Answer to the Petition on November 3, 2021. (ECF No. 10.) The Petition is now ripe for review.
Under the mailbox rule, a pro se prisoner's filing is deemed filed at the time he or she hands it over to prison officials for mailing to the court or puts it in the prison mailbox. Houston v. Lack, 487 U.S. 266, 276 (1988). Although the Petition was not received by the Clerk of Court until August 30, 2021, the Petition was postmarked August 24, 2021. As there is no evidence to the contrary, and the Petition is not dated, the Court will assume that Petitioner delivered his Petition for mailing on the date it was postmarked. See West v. Lockett, 2009 WL 1270225, at *4 n.2 (W.D. Pa. May 6, 2009) (citing cases). Thus, for statute of limitations purposes, the Court should consider the Petition filed as of August 24, 2021.
B. Factual History
The factual history that was summarized by the Assistant District Attorney at the time of Petitioner's guilty plea is as follows:
Had the Commonwealth proceeded to trial on 200816670, the Commonwealth would have called Officer William Kelsch, K-E-L-S-C-H, and Officer Matt Malloy, M-A-L-L-O-Y, both of Zone 2 of the City of Pittsburgh Police Department, as well as Richard Ramsey, R-A-M-S-E-Y, of the Allegheny County Crime Lab, who would have testified that on or about June 28th, 2008, officers observed the [Petitioner] traveling at a high rate of speed, weaving in and out of heavy traffic, without signaling.
A traffic stop was conducted. During that stop officers observed a plastic grocery bag containing suspected filler from a Phillies blunt. The officer then, based on that observation, requested consent to search the passengers of the vehicle, including [Petitioner]. [Petitioner] then consented to the search, and as the officer was running a hand over [Petitioner's] backside, the officer immediately felt a brick of heroin clenched between his buttocks. At that time [Petitioner] manipulated the heroin to the top of his jeans and the officer was able to recover it. In addition, a baggie of marijuana was recovered at the same time. The officer then asked [Petitioner] if he uses heroin, to which [Petitioner] replied that he does not.
At that time, [Petitioner] was taken into custody without incident. However, at the intake area of the Allegheny County Jail a baggie containing crack cocaine was recovered from [Petitioner's] left rear pants pocket.
Substances recovered during the arrest were tested by the Allegheny County Crime Lab at 08 LAB 06565 and determined to be 1.66 grams of heroin, 1.8 grams of marijuana, and .65 grams of cocaine. With that the Commonwealth would have rested as to that case.(GPT, 1/10/2011, pp. 9-11.)
C. 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).
D. Discussion
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.
First, the “trigger date” for Petitioner's claims is the date on which his judgment of sentence became final.In this case, Petitioner's judgment of sentence became final on February 9, 2011, when the time expired for him to file a notice of appeal. See Pa. R.A.P. 903(a); see also 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 February 10, 2011, and absent any tolling for “properly filed” applications for post-conviction relief under section 2244(d)(2), Petitioner had one year from that date to file a timely federal habeas petition challenging his judgment of sentence. Here, however, Petitioner did not file any applications for post-conviction relief until December 17, 2019, after his AEDPA one-year statute of limitations period had already expired. Therefore, section 2244(d)(2) does not apply and the Petition in this case was untimely filed on August 24, 2021.
Petitioner's claims do not suggest that an alternative “trigger date” should be utilized.
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) (statute of limitations may be equitably tolled with showing of diligence and extraordinary circumstances); see also McQuiggin v. Perkins, 569 U.S. 383 (2013) (equitable exception to statute of limitations for actual innocence).
Petitioner has not argued, much less demonstrated, the applicability of equitable tolling or the fundamental miscarriage of justice exception. However, the undersigned does note that at least one of Petitioner's claims is premised on the theory that he is actually innocent of the contraband charge, which was charged at count 1 of the Criminal Information. Specifically, he states that he is innocent because he did not know that the drugs were still in his pocket and because he did not have the ability to take the drugs out of his pocket since he was handcuffed. He also believes that he is innocent because the drugs were discovered in his pocket while he was in the jail's intake area and not actually inside the jail. The undersigned will therefore consider whether the miscarriage of justice exception enunciated by the Supreme Court in McQuiggin is applicable.
In McQuiggin, the Supreme Court held that a credible showing of actual innocence can overcome AEDPA's one-year statute of limitations for filing habeas petitions. McQuiggin, 569 U.S. at 392, 397. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera v. Collins, 506 U.S. 390, 404 (1993). However, to invoke this exception, the Supreme Court has stressed that a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of [ ] new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). It further stressed the demanding nature of this standard by stating that “[t]he gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” Id. at 401 (quoting Schlup, 513 U.S. at 316)).
Here, Petitioner's case is simply not one of the rare cases where the actual innocence exception to the statute of limitations applies. The evidence to which he points is neither new evidence nor evidence that would likely result in him not being convicted. Therefore, his habeas petition should be dismissed as time barred.
The undersigned notes that even if the Petition was not time barred then it would be subject to dismissal for substantially the same reasons set forth by the Respondent in the Answer. Specifically, his claims are unexhausted and procedurally defaulted. Furthermore, to the extent he is raising a freestanding actual innocence claim, the Supreme Court has yet to definitively resolve whether claims of actual innocence are ever grounds for federal habeas relief absent an independent constitutional violation. Reeves v. Fayette SCI, 897F.3d 154, 160 n.4 (3d Cir. 2018). But, to the extent they are cognizable and can be grounds for relief in a non-capital federal habeas case such as this one, Petitioner has fallen short of offering the type of evidence of innocence that would entitle him to habeas relief on such a claim given that he has not satisfied the lesser (although still demanding) standard that applies to gateway actual innocence claims. See, id.
E. 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 aforementioned reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) be dismissed as untimely and 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.