Opinion
Civil Action 2: 21-cv-0410
11-03-2021
WILLIS SAPP, SR., Petitioner, v. SUPERINTENDENT BARRY SMITH, Superintendent; DISTRICT ATTORNEY OF WASHINGTON COUNTY, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
John P. Friedmann Washington County District Attorney's Office
John P. Friedmann
Washington County District Attorney's Office
J. Nicholas Ranjan, United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge
I. Recommendation
Before the Court is a Motion to Dismiss Habeas Corpus Petition filed by Respondents. (ECF No. 9, Errata filed at ECF No. 11). This motion has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation. For the reasons that follow, it is respectfully recommended that the motion be granted, the petition for a writ of habeas corpus be dismissed with prejudice as untimely, and a certificate of appealability be denied.
II. Report
A. Facts and Procedural Background
Petitioner, Willis Sapp, Sr., a prisoner incarcerated at the State Correctional Institution at Houtzdale, initiated this action on March 22, 2021, by filing a 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. 1). Petitioner is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Washington County on September 18, 2008.
Following a jury trial in the Court of Common Pleas of Washington County, Petitioner was found guilty of Rape by Forcible Compulsion, Statutory Sexual Assault, Corruption of Minors, and two counts of Indecent Assault of a Person Less than 16 Years of Age. On September 18, 2008, Petitioner was sentenced to an aggregate term of 17 to 39 years imprisonment. Petitioner's conviction and sentence was affirmed on direct appeal by the Superior Court of Pennsylvania on December 24, 2009. The Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on June 22, 2011. (ECF No. 11-1, Exh. 4). Petitioner did not seek discretionary review in the Supreme Court of the United States. Therefore, his judgment became final under both state and federal law on September 20, 2011, when the time to file a petition for writ of certiorari in the Supreme Court of the United States expired. 42 Pa. Cons. Stat. § 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, 149-54 (2012) (a judgment becomes final under 28 U.S.C. § 2244(d)(1)(A) at the conclusion of direct review or the expiration of time for seeking such review).
On October 29, 2012, Petitioner filed his first pro se Post-Conviction Relief Act (“PCRA”) petition in state court (Id., Exh. 5). Counsel was appointed for Petitioner and filed a Turner/Finley “no merit” letter indicating that the PCRA petition was untimely and sought leave to withdraw. On August 21, 2014, the PCRA court granted counsel's motion to withdraw. (Id., Exh 6). On May 15, 2015, the PCRA court dismissed the PCRA petition as untimely. (Id., Exh. 8). Petitioner did not file an appeal from the order dismissing this petition.
On October 9, 2015, Petitioner filed a second PCRA petition. (Id., Exh. 9). On January 29, 2016, the PCRA court denied the petition as untimely. (Id., Exh. 10). Petitioner appealed the denial of his second PCRA petition to the Superior Court. (Id., Exh. 11). On December 30, 2016, the Superior Court dismissed the appeal for failure to file a brief as required by the Pennsylvania Rules of Appellate procedure. (Id., Exh. 12). Petitioner did not seek further review.
Then, almost five years later, Petitioner initiated this federal habeas case in March 2021, with the filing of the instant petition for writ of habeas corpus. The certification signed by Petitioner indicates that he placed the petition in the prison mailing system on March 22, 2021. (ECF No. 1 at 15). Giving Petitioner the benefit of the prison mailbox rule, the petition is deemed filed as of March 22, 2021.
On July 6, 2021, Respondents filed the instant motion to dismiss in lieu of an answer raising two defenses: that the petition is untimely and that each of the grounds for relief raised in the petition has been procedurally defaulted. (ECF No. 11). Petitioner responds in a lengthy and complicated argument in which he contends, inter alia, that:
* the AEDPA time limitations “deprives Petitioner of his private vested rights of Fifth Amendment Due Process and equal protection under the law of “the privilege of Habeas Corpus, . . . ” (ECF No. 19, ¶ 4);
* the “one-year statute of limitations - which is not prescribed by the Suspension Clause nor adopted expressly by the latest amendments (2004?) of the specialized Habeas Corpus Rules governing § 2254 habeas applications, -- is a key “new restriction” and “additional condition” . . . not tolerated by the historic role of habeas, the Suspension Clause, or the Rule Writers, or the Supreme Court. (Id. at ¶ 12);
* “Petitioner avers Section 2244(d)(2) violates Article III because, while it ‘appears' 2244(d)(1) ‘amended the law,' it ‘does [not] set out substantive standards for the Judiciary to apply.” (Id. at ¶ 14).
The motion is ripe for consideration.
B. Time Period for Filing Federal Habeas Corpus Petitions
The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed under the one-year limitations period applicable to such petitions. In this regard, the federal habeas corpus laws were amended pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 142 Cong. Rec. H3305-01 (April 24, 1996), which provides as follows.
(d) (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 the 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 factual predicate of 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 subsection.28 U.S.C. § 2244(d).
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 individual claims raised in the Petition. Typically, this is the date that the petitioner's direct review concluded and the judgment became “final” for purposes of triggering the one-year period under section § 2244(d)(1)(A). 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 statutory exceptions or equitable tolling should be applied on the facts presented.
In the instant case, Petitioner's judgment became final on September 20, 2011, when his time to file a petition for writ of certiorari with the Supreme Court of the United States expired. Therefore, the “trigger” date for purposes of the one-year period under § 244(d)(1)(A) is September 20, 2011. Approximately 13 months after his judgment became final, Petitioner filed a PCRA petition on October 29, 2012, which the PCRA court dismissed as untimely. Almost three years later, Petitioner filed a second PCRA petition on October 9, 2015, which was dismissed as untimely by the PCRA court and dismissed by the Superior Court for failure to file a brief as required by Pennsylvania appellate procedure.
The PCRA has its own one-year statute of limitations, which is codified at 42 Pa. Cons. Stat. § 9545(b). Unlike AEDPA's one-year statute of limitations, the PCRA's one-year statute of limitations is jurisdictional, see Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014), and provides in relevant part: “(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, . . . .” Even if Petitioner had filed his PCRA petition before the habeas limitations period expired, it could not have tolled the limitations period because the PCRA court held it was untimely. See Pace v. DiGuglieilmo, 544 U.S. 408, 417 (2005) (where state court rejected a PCRA petition as untimely, it was not “properly filed” and did not trigger statutory tolling under § 2244(d)(2)). Further, this Court “must defer” to the holdings of the state courts on whether a PCRA petition is untimely. See Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003).
The federal habeas corpus statute, as amended by AEDPA, specifically provides that only “properly filed” applications for State post-conviction or other collateral review can toll the one-year limitations period. 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that an untimely filed Pennsylvania PCRA petition was not a “properly filed application” under AEDPA). Thus, the time period that Petitioner spent pursuing either of his PCRA petitions did not toll Petitioner's one year limitations period under AEDPA.
Petitioner failed to file his federal habeas petition until March of 2021, almost ten years after his judgment became final, well beyond AEDPA's one-year deadline. Nothing in the record before this Court indicates that Petitioner is entitled to take advantage of any of the other provisions triggering the one-year limitations period. 28 U.S.C. § 2244(d)(1)(B)-(D). For example, Petitioner does not argue that he suffered any impediment to filing his federal petition. 28 U.S.C. § 2244(d)(1)(B). Nor has he asserted that his claims are based on a new constitutional right recognized by the United States Supreme Court and made retroactive to cases on collateral review. 28 U.S.C. § 2244(d)(1)(C). And he has not shown that his claims are based upon a factual predicate that could not have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D).
Moreover, there is no indication in the record that the doctrine of equitable tolling should be applied. Although AEDPA's one-year limitation in § 2244(d) is a statute of limitations, not a jurisdictional bar, and, therefore, may be equitably tolled, the United States Court of Appeals for the Third Circuit has held that “courts should be sparing in their use of the doctrine” and limit its application only to the “rare situation where [it] is demanded by sound legal principles as well as the interests of justice.” LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005) (internal citations omitted). A petitioner is entitled to equitable tolling only if he shows both that (1) he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “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). Equitable tolling is warranted “ ‘only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice'.” Schlueter v. Varner, 384 F.3d 69, 75 (3d Cir. 2004) (quoting Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)). “The fact that a petitioner is proceeding pro se does not insulate him from the ‘reasonable diligence' inquiry and his lack of legal knowledge or legal training does not alone justify equitable tolling.” Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir. 2013).
The undersigned finds that Petitioner has not met his burden of demonstrating that he is entitled to equitable tolling. He has not shown that he was diligent in filing his federal habeas corpus petition, which, as already noted, was filed almost ten years after his judgment of conviction became final and he has not directed this Court to anything that would qualify as an “extraordinary circumstance” that stood in his way of filing a timely federal habeas petition. Petitioner has not shown that his is one of those “rare situations, ” Sistrunk, 674 F.3d at 190, in which equity permits tolling. As a consequence, it is recommended that the motion to dismiss be granted and the petition for writ of habeas corpus be denied with prejudice.
III. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It 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 this standard here, the undersigned concludes that jurists of reason would not find it debatable that the claims in the petition are time-barred and that Petitioner is not entitled to equitable tolling. Consequently, a certificate of appealability should be denied.
Because the undersigned is recommending that the motion to dismiss be granted on the timeliness argument, it is not necessary to address the additional argument raised by Respondents that each of Petitioner's grounds for relief has been procedurally defaulted due to his failure to raise these claims in an available state court proceeding.
IV. Conclusion
For these reasons, it is recommended that the motion to dismiss be granted and the petition for writ of habeas corpus be denied with prejudice. It is further recommended that a certificate of appealability be denied.
V. Notice
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner, because he is a non-electronically registered party, must file objections to this Report and Recommendation by November 22, 2021, and Respondents, because they are electronically registered parties, must file objections, if any, by November 17, 2021. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).