Opinion
Civil Action 20-4580
07-01-2021
MIGUEL RUSSI v. BARRY SMITH, et al.
REPORT AND RECOMMENDATION
ELIZABETH T. HEY, U.S.M.J.
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Miguel Russi (“Petitioner”), who is currently incarcerated at the State Correctional Institution in Houtzdale, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed as untimely.
I. FACTS AND PROCEDURAL HISTORY
On October 29, 2013, Petitioner entered a guilty plea before the Honorable Anthony A. Sarcione of the Chester County Court of Common Pleas, to two counts each of robbery and conspiracy related to a robbery spree that spanned forty-three days and involved four victims. Commonwealth v. Russi, No. 3857 EDA 2015, Memorandum, at 1 (Pa. Super. Sep. 20, 2016) (Doc. 7-1 at 287) (“2016 Super. Ct. Op.”); Commonwealth v. Russi, CP-15-CR-0003479-2012, CP-15-CR-0003768-2012, Docket Sheets (Chester C.C.P. entries dated 10/29/13) (Doc. 7-1 at 2, 36) (collectively, “Docket Sheets”). On the same day, Judge Sarcione sentenced Petitioner to an aggregate sentence of twenty-five -to- fifty years' imprisonment. Docket Sheets (entries dated 10/29/13 and Disposition Sentencing/Penalties section). Both parties filed motions for reconsideration of sentence, see id. (entries dated 11/07/13 & 11/08/13), which were denied. Id. (entries dated 02/28/14). Petitioner did not file a timely appeal.
All pinpoint citations are to the court's ECF pagination. Because the court has not received the state court record, the procedural history is compiled from the parties' submissions, including state court documents attached to the response at Doc. 7-1.
At an unspecified time after February 28, 2014, but during the thirty-day appeal period, Petitioner contacted his counsel regarding his direct appeal rights. See Commonwealth v. Russi, CP-15-CR-0003479-2012, CP-15-CR-0003768-2012, Opinion Sur Rule 1925(a), at 2 (Chester C.C.P. Oct.14, 2014) (Doc. 7-1 at 122). On March 19, 2014, Petitioner's counsel wrote to Petitioner explaining (erroneously) that his direct appeal time limit had passed. Id. Counsel recommended Petitioner move forward with a petition pursuant to Pennsylvania's Post Conviction Relief Act, 42 Pa. C.S.A. §§ 95419551 (“PCRA”). Id.
On April 17, 2014, Petitioner filed a pro se PCRA petition, claiming that his direct appellate counsel was ineffective for failing to protect his appeal rights. Commonwealth v. Russi, CP-15-CR-0003479-2012, CP-15-CR-0003768-2012, Motion for Post Conviction Collateral Relief (Chester C.C.P. Apr. 17, 2014) (Doc. 7-1 at 103). The PCRA court appointed counsel, who filed a petition to withdraw as counsel supported by a Finley letter. Commonwealth v. Russi, CP-15-CR-0003479-2012, CP-15-CR-0003768-2012, Finley Letter (Chester C.C.P. June 6, 2014) (Doc. 7-1 at 133).
Pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), appointed counsel in a post-conviction proceeding may be given leave to withdraw upon the submission of a “no merit” letter that details the nature and extent of their review of the case, lists each issue the Petitioner wished to have reviewed, and explains their assessment that the case lacks merit. The court must also conduct an independent review of the record and agree that the petition is meritless before dismissing the petition.
The court entered a Rule 907 Notice of Intent to dismiss on June 10, 2014, and five days later dismissed the petition and granted counsel's motion to withdraw. Docket Sheets (entries dated 6/10/14 & 6/15/14). Petitioner appealed to the Superior Court, which vacated and remanded the matter “for a hearing to determine whether [Petitioner] requested counsel to file an appeal from the judgment of sentence, and if so, the PCRA court shall reinstate [Petitioner]'s right to file a counseled appeal nunc pro tunc.” Commonwealth v. Russi, No. 2250 EA 2014, Judgment Order, at 3 (Pa. Super. July 28, 2015) (Doc. 7-1 at 157).
On remand the PCRA court appointed counsel, who on September 18, 2015, filed Petitioner's second PCRA petition. Docket Sheets (entries dated 08/06/15 & 09/18/15). On November 2, 2015, the court issued an Order granting Petitioner's right to file a direct appeal to the Pennsylvania Superior Court nunc pro tunc. Id. (entries dated 11/02/15).
On November 24, 2015, Petitioner filed his direct appeal. Docket Sheets (entries dated 11/24/15). Judge Sarcione issued an opinion recommending affirmance, and on September 20, 2016, the Pennsylvania Superior Court affirmed Petitioner's judgment of sentence. Commonwealth v. Russi, CP-15-CR-0003479-2012, CP-15-CR-0003768, Opinion Sur Rule 1925(a) (Chester C.C.P. Jan. 19, 2016) (Doc. 7-1 at 177); 2016 Super. Ct. Op. at 8. The sole argument raised was that the trial court abused its discretion in imposing sentence, which the Superior Court rejected. 2106 Super. Ct. Op. at 4-8. Petitioner did not seek review in the Pennsylvania Supreme Court.
On September 19, 2017, Petitioner's counsel filed Petitioner's third PCRA petition, which was his first following the completion of his direct appeal. Docket Sheets (entries dated 09/19/17). Judge Sarcione held a hearing on March 29, 2018, and denied relief the following day. Commonwealth v. Russi, CP-15-CR-0003479-2012, CP-15-CR-0003768-2012, Order (Chester C.C.P. Mar. 30, 2018) (Doc 7-1 at 326); Docket Sheets (entries dated 03/30/18). The Superior Court affirmed the denial of PCRA relief on April 30, 2019, concluding that the PCRA court correctly rejected Petitioner's claim that plea counsel was ineffective in convincing him that the court would impose a ten-year sentence and pressured him to plead guilty. Commonwealth v. Russi, No. 1177 EDA 2018, Memorandum, at 7-9 (Pa. Super. Apr. 30, 2019) (Doc 7-1 at 368). Petitioner did not seek review in the Pennsylvania Supreme Court.
On September 14, 2020, Petitioner commenced the present pro se petition for writ of habeas corpus. Doc. 1. The petition presents four grounds for relief:
The habeas petition was docketed on September 16, 2020. However, this court employs the “mailbox rule, ” deeming the petition filed when given to prison authorities for mailing. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). The petition bears a signature date of September 13, 2020, but indicates the petition was placed in the prison mailing system on September 14, 2020. Doc. 1 at 16. Therefore, I will deem the filing date as September 14, 2020.
1. The sentencing court abused its discretion when it imposed an aggregate sentence of 25 -to- 50 years' imprisonment;
2. Direct appeal counsel filed an unauthorized PCRA petition on Petitioner's behalf on the last day the PCRA could be filed, then abandoned Petitioner;
3. Plea counsel was ineffective when he promised Petitioner a substantially lower sentence if Petitioner accepted the plea bargain; and
4. A federal evidentiary hearing is required where none of the grounds raised were decided by the state courts on the merits.Doc. 1 at 5-11 (Grounds One-Four). On October 23, 2020, Respondents filed a response arguing that the petition is untimely and in the alternative that the claims raised are unexhausted and/or meritless. Doc. 7. The Honorable C. Darnell Jones, II, referred the matter to the undersigned for a Report and Recommendation. Doc. 5.
II. DISCUSSION - STATUTE OF LIMITATIONS
A. Start Date
Federal habeas corpus petitions are subject to a one-year limitations period. 28 U.S.C. § 2244(d). Ordinarily, the one-year period begins to run on the date the judgment became final in the state courts. Id. § 2244(d)(1)(A). For purposes of determining the date a conviction becomes final, federal courts look to state law. Under Pennsylvania law, a defendant may file an appeal to the Superior Court within thirty days from the date of the entry of the order appealed from, and if unsuccessful similarly has thirty days to file a petition for allowance of appeal in the Pennsylvania Supreme Court. See Pa. R.A.P. 903(a), 1113(a). If a defendant does not file an appeal, the judgment is considered final when the period to seek review expires. See 42 Pa. Cons. Stat. Ann. § 9545; see also Gonzalez v. Thaler, 565 U.S. 134, 151 (2012); Commonwealth v. Guthrie, 749 A.2d 502, 504 (Pa. Super. 2000) (if appeal is not taken, judgment is final when the time for pursuing direct review in state court expires).
Here, Petitioner's direct appellate rights were reinstated nunc pro tunc on November 2, 2015, and his conviction became final on October 20, 2016, thirty days after the Superior Court affirmed his judgment of sentence on direct appeal. Thus, absent statutory or equitable tolling or the benefit of the actual innocence exception, Petitioner had until October 20, 2017, to file a timely habeas corpus petition.
The habeas statute also provides for alternative start dates for the habeas limitations period if one of four specific circumstances is present. 28 U.S.C. § 2244(d)(1)(a)-(d). Petitioner does not aver, nor does the record reveal, any basis to apply an alternate start date.
B. Statutory Tolling
The habeas limitations period is subject to statutory tolling for the time during which a “properly filed” PCRA petition is pending. 28 U.S.C. § 2244(d)(2). Here, Petitioner tolled the limitations period by filing a timely PCRA petition on September 19, 2017, after 334 days of the one-year statute of limitations had run. The limitations period was tolled from that date until May 30, 2019, thirty days after the Superior Court affirmed the denial of PCRA relief, leaving Petitioner thirty-one days (until June 30, 2019) to file a timely federal habeas petition.
Thus, absent equitable tolling or application of the actual innocence exception, Petitioner's habeas petition filed on September 14, 2020, is untimely by over a year.
C. Equitable Tolling
The United States Supreme Court has held that the habeas time bar is not jurisdictional, but instead, is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645-46 (2010). In Holland, the Supreme Court held that equitable tolling is proper only where the Petitioner “shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing.” Id. at 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The diligence required for equitable tolling purposes is ‘reasonable diligence.'” Id. at 653 (citing Lonchar v. Thomas, 517 U.S. 314, 326 (1996)). Additionally, the Court has held that in order to qualify for equitable tolling, the Petitioner must exercise reasonable diligence throughout the period he seeks to toll. See Pace, 544 U.S. at 418 (petitioner must also establish diligence); see also LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (petitioner must exercise reasonable diligence in exhausting state remedies and bringing federal habeas petition); Schlueter v. Varner, 384 F.3d 69, 77-78 (3d Cir. 2004) (attorney malfeasance must be accompanied by diligence to warrant equitable tolling).
The Supreme Court did not identify what would constitute an “extraordinary circumstance, ” except to suggest that attorney misconduct could rise to the level of “extraordinary” in some circumstances. Holland, 560 U.S. at 651-52. The Supreme Court explained that “the ‘exercise of a court's equity powers . . . must be made on a case-by-case basis.'” Id. at 649-50 (quoting Baggett v. Bullitt, 377 U.S. 360, 275 (1964)); see also Miller v. N.J. State Dept. of Corr., 145 F.3d 616, 618 (3d Cir. 1988) (equitable tolling appropriate when “principles of equity would make [the] rigid application [of a limitations period] unfair”).
The Third Circuit has held equitable tolling to be justified when (1) the defendant has actively misled the plaintiff, (2) the plaintiff has in some extraordinary way been prevented from asserting their rights, (3) the plaintiff has timely asserted rights, but has mistakenly done so in the wrong forum, or (4) the plaintiff received inadequate notice of the right to file suit, a motion for appointment of counsel is pending, or the court has misled the plaintiff into believing that they have done everything required. See Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). In any of these circumstances, a petitioner must also establish that they “exercised reasonable diligence in investigating and bringing [the] claims.” Miller, 145 F.3d at 618-19 (citing New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1999)). Further, ignorance of the law is not a basis for equitable tolling. Schlueter, 284 F.3d at 75.
Here, although the District Attorney states that Petitioner adduces no basis for equitable tolling, Doc. 7 at 11, Petitioner directly addresses equitable tolling and blames his late habeas filing on the attorney who was appointed to represent him in his reinstated direct appeal. Doc. 1 at 19-26. Specifically, he argues that the statute should be equitably tolled because counsel, after losing that appeal in the Superior Court on September 20, 2016, did not seek allowance of appeal in the Pennsylvania Supreme Court nor discuss whether to file with him, and then without his knowledge filed the third PCRA petition on September 19, 2017, and then essentially abandoned him, foreclosing any meaningful review. Doc. 1 at 21-25.
Attorney abandonment is conceivably a basis for equitable tolling, requiring a petitioner to demonstrate that counsel's performance fell below an objective standard of reasonableness and that but for counsel's errors the result of the underlying proceeding would have been different. Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). Here, Petitioner alleges that counsel did not tell him that the Superior Court rejected the appeal of the dismissal of the petition, and that he did not learn of it until making his own inquiry to the county clerk's office a year later. Doc. 1 at 22-23. He does not identify the date he learned of the dismissal, but states that it was in response to an inquiry he sent on May 1, 2020. Id. at 23. However, he did not file his federal petition until September 14, 2020, five months later. This delay distinguishes his case from Schlager v. Superintendent Fayette SCI, 799 Fed.Appx. 938, 941 (3d Cir. 2019), upon which he relies. In Schlager the Third Circuit found that equitable tolling was appropriate where the petitioner learned on his own that his PCRA appeal had been dismissed ten months earlier and then acted promptly in filing his habeas petition. Id. at 940 (petitioner “quickly filed a pro se petition for untimely appeal nunc pro tunc, which the Pennsylvania Supreme Court denied, and he filed his § 2254 petition eighteen days later”). Having waited from May until September to file his petition, Petitioner's reliance on Schlager is misplaced.
Petitioner avers that counsel filed the PCRA petition on the last day it could be timely filed, Doc. 1 at 24, but this is incorrect. As previously noted, Petitioner's direct appellate rights were reinstated nunc pro tunc on November 2, 2015, and concluded on October 20, 2016, thirty days after the Superior Court affirmed his judgment of sentence on direct appeal. Thus, Petitioner had until October 20, 2017, in which to file a timely PCRA petition, and counsel filed it thirty-one days earlier, on September 19, 2017.
Additionally, PCRA counsel's ineffectiveness is not considered an extraordinary circumstance, see Holland, 560 U.S. at 655-6 (holding “attorney negligence is not an extraordinary circumstance warranting equitable tolling”), nor is Petitioner's own mistaken belief in the timeliness of a petition. See, e.g., Figueroa v. McFarland, No. 04-CV-4724, 2005 WL 2044906, at *5 (D.N.J. Aug. 23, 2015) (“ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse timely filing.”).
As noted, Petitioners are required to exercise due diligence. Holland. 560 U.S. 631. Here, Petitioner does not explain why he failed to commence a PCRA petition at any point prior to September 19, 2017, and, even accepting his assertion that he did not learn that his PCRA appeal was denied until his inquiry at the beginning of May 2020, he fails to explain why he waited a year to make that inquiry or why he waited until September 2020 to file his habeas petition. See Pace, 544 U.S. at 417 (equitable tolling denied based upon Petitioner's waiting five months following denial of state appeal before seeking federal relief). Accordingly, Petitioner is not entitled to equitable tolling and absent a showing of actual innocence, Petitioner's habeas petition is untimely.
Petitioner does not argue that equitable tolling is warranted due to the COVID-19 pandemic, and I find no basis to equitably toll on that basis. Courts have concluded that the COVID-19 pandemic “could - in certain circumstances - conceivably warrant equitable tolling” in the habeas context. United States v. Henry, No. 2:17-cr-00180, 2020 WL 7332657, at *3 (W.D. Pa. Dec. 14, 2020) (citation omitted). “These ‘certain circumstances' involve defendants who had been pursuing their rights diligently and would have timely filed if not for external obstacles caused by COVID-19.” Id. Here, as noted, Plaintiff failed to exercise due diligence in commencing his PCRA petition and in waiting a year to inquire into the status of his appeal, in addition to the five months that passed between learning that his appeal had been dismissed and the date he filed the petition. See, e.g., United States v. Barnes, No. 18-CR-0154-CVE, 2020 WL 4550389, at *2 (N.D. Okla. Aug. 6, 2020) (assuming COVID-19-related lockdown “delayed defendant's ability to file his motion, ” but equitable tolling not warranted because defendant did not demonstrate that he diligently pursued his claims).
D. Actual Innocence
The Supreme Court has held that a convincing claim of actual innocence will overcome the habeas limitations period. McQuiggin v. Perkins, 569 U.S. 383 (2013). This requires a petitioner to supplement his claim with new, reliable evidence of factual innocence. Schlup v. Delo, 513 U.S. 298, 324 (1995). The Supreme Court has explained that this is an exacting standard. “The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the Petitioner].” McQuiggin, 569 U.S. at 286 (quoting Schlup, 513 U.S. at 329). While a Petitioner alleging actual innocence need not prove diligence in order to assert such claim, “[un]explained delay in presenting new evidence bears on the determination whether the Petitioner has made the requisite showing.” Id. at 385; see also Schlup, 513 U.S. at 332 (“[a] court may consider how the timing of the submission and the likely credibility of a Petitioner's affiants bear on the probable reliability of . . . evidence [of actual innocence]”).
Here, despite Petitioner's allegations that counsel unlawfully induced his guilty plea, he has not identified any new, reliable evidence of factual innocence and therefore fails to meet the Schlup standard. Therefore, I recommend that his petition be dismissed as untimely.
At this time, it is unnecessary to address the claims on the merits as I recommend that the petition be dismissed as untimely.
III. CONCLUSION
Petitioner's conviction became final on
October 20, 2016, and 334 days elapsed between that date and the date Petitioner filed a timely PCRA petition on September 19, 2017. The habeas limitations period tolled during the pendency of this PCRA petition, from September 19, 2017, through May 30, 2019, at which time Petitioner had thirty-one days remaining in which to file a timely habeas petition. Petitioner is not entitled to equitable tolling nor to the actual innocence exception. Therefore, the federal habeas petition filed on September 14, 2020, is untimely by more than one year.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 1st day of July 2021, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED as untimely filed. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.