Opinion
Civil Action 2: 21-cv-0748
12-20-2021
GARY EUGENE STONEKING, Petitioner, v. MICHAEL ZAKEN, Superintendent; THE DISTRICT ATTORNEY OF THE COUNTY OF WASHINGTON, AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Jason M. Walsh Washington County District Attorney's Office (via ECF notification)
Jason M. Walsh Washington County District Attorney's Office (via ECF notification)
William S. Stickman 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 Respondent, the District Attorney of Washington County. (ECF No. 9). 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. Factual and Procedural Background
Petitioner, Gary Eugene Stoneking, (“Petitioner” or “Stoneking”), is challenging the judgments of sentence imposed upon him by the Court of Common Pleas of Washington County on January 12, 2010, at Criminal Docket Nos. CP-63-CR-0000328-2007 and CP-63-CR-0000854-2009.
On June 14, 2009, at Criminal Docket No. CP-63-CR-0000328-2007, Stoneking pled guilty to one count each of Statutory Sexual Assault, Sexual Assault, Rape of a Child, Involuntary Deviate Sexual Intercourse with a Child, and Aggravated Indecent Assault of Child. And at Criminal Docket No. CP-63-CR-0000854-2009, he pled guilty to one count each of Rape of a Mentally Ill. or Deficient Victim, Statutory Rape, Indecent Assault, and two counts of IDSI Victim Less than 16 years old. (Pet. at ¶ 5). On January 12, 2010, Stoneking was sentenced to an aggregate term of 16 to 40 years imprisonment. (Id. at ¶ 3). He did not file a direct appeal and did not seek collateral relief until June of 2020, over a decade after he was sentenced. Stoneking's judgment of sentence became final on February 11, 2010 (upon the expiration of the time for seeking direct review from the Superior Court of his judgment of sentence). See Pa. R.A.P. 903; 28 U.S.C. § 2244(d)(1)(A). On July 19, 2017, the Pennsylvania Supreme Court issued its decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, sub nom. Pennsylvania v. Muniz, -- U.S., 138 S.Ct. 925 (2018). In Muniz, the Pennsylvania Supreme Court held that retroactive application of the registration and reporting requirements of SORNA violated the Ex Post Facto Clauses of the United States and Pennsylvania constitutions. Muniz, 164 A.3d at 1193.
Almost three years after the Muniz decision, Stoneking filed for collateral relief under Pennsylvania's Post-Conviction Relief Act (“PCRA”) on June 26, 2020. In his PCRA motion, relying upon Muniz, he argued that SORNA, as applied to him, imposed unconstitutional sex offender registration requirements. Counsel was appointed for Petitioner and counsel filed a Turner/Finley “no merit” letter and sought leave to withdraw. On September 10, 2020, the PCRA court granted counsel's motion to withdraw and on October 7, 2020, the PCRA court dismissed the PCRA petition as untimely. (ECF No. 10, Exh. 3.)
In his PCRA Petition, Stoneking argued that based on Commonwealth v. Karraker, 2019 WL 3290493 (Pa. Super. 2019), he had until July 22, 2020, to initiate his PCRA proceedings. In Karraker, timeliness was not an issue as the petitioner filed his PCRA petition on December 20, 2017, three months after Muniz was decided. Karraker had been sentenced following a conviction for failure to comply with SORNA requirements. The Superior Court found Karraker was entitled to relief because, based on Muniz, SORNA was not enacted at the time of his underlying conviction.
Stoneking appealed the denial of his PCRA petition to the Superior Court of Pennsylvania on October 27, 2020. (Id., Exh. 4). On May12, 2021, the Superior Court dismissed the appeal for failure to file a brief as required by the Pennsylvania Rules of Appellate Procedure. (Id., Exh. 5). Stoneking did not seek further review.
Two weeks after the Superior Court denied his appeal, Stoneking initiated this federal habeas case when he placed his federal habeas petition in the prison mailing system on May 24, 2021. (See Certification signed by Stoneking, ECF No. 4 at 16). Giving Stoneking the benefit of the prison mailbox rule, the petition is deemed filed as of May 24, 2021. Because the Petition was received without the filing fee or a motion for leave to proceed in forma pauperis, the case was administratively closed on June 17, 2021. (ECF No. 2). On July 1, 2021, Stoneking paid the filing fee (ECF No. 3) and the Petition was formally docketed. (ECF No. 4).
Pursuant to the prison mailbox rule, the petition is deemed filed at the time the petition is placed in the prison legal mail system. Houston v. Lack, 487 U.S. 266 (1988); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (holding that “a pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court.”) .
Stoneking raises three grounds for habeas relief and seeks to be removed from the sex offender registry and be released from the custody of the Pennsylvania Department of Corrections. (Id. at 15). In his first ground for relief, he argues that he was sentenced under Megan's Law III, not SORNA, and the retroactive application of SORNA is unconstitutional. Further, he argues that Megan's Law III was deemed unconstitutional by the Pennsylvania Supreme Court's decision in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). Next, he argues that the sentencing court erred by sentencing him prior to receiving a Presentence Investigation Report or an evaluation by the sex offender assessment board. And third, he argues that his counsel was ineffective for failing to locate and interview witnesses.
It appears that neither Claim 2 nor Claim 3 has been raised before the state courts and as a result, both claims are procedurally defaulted and the state courts would now refuse to review the claims based on an adequate and independent state procedural rule.
On October 14, 2021, Respondent filed the instant motion to dismiss in lieu of an answer arguing that the instant federal petition is untimely. Stoneking responded to the motion, offering no explanation for the delay in his filings, but rather focusing on the merits of his claims. (ECF No. 15). The motion is ripe for consideration.
The Court's Standing Order states that the District Attorney shall file an Answer to the Petition on behalf of all Respondents. (ECF No. 5, at 2). Paragraph 4 of the Standing Order allows Respondents to file a Motion to Dismiss within the time frame for the filing of the answer. The instant motion was filed only on behalf of one respondent, the District Attorney of Washington County. The analysis in this Report and Recommendation, however, applies equally to all respondents.
B. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year limitations period on applications for writs of habeas corpus. 28 U.S.C. § 2244(d)(1). Generally, the limitations period begins on the date the petitioner's judgment of sentence became final “by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). A petitioner also has the opportunity to establish certain alternative start dates, including:
(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.Id. § 2244(d)(1)(C)-(D); see also Brown v. Cuyler, 669 F.2d. 155, 158 (3d Cir. 1982) (petitioner must prove “all facts entitling him to” habeas relief).
Stoneking's criminal judgment of sentence became final on February 11, 2010. He was required to file a habeas petition within one year of that date, or by February 11, 2011. See § 2244(d)(1)(A). Stoneking, however, failed to file his federal habeas petition until May 24, 2021, over a decade after the limitations period expired. The instant petition is therefore untimely unless statutory tolling, equitable tolling, or an alternative start date renders it timely.
1. Statutory Tolling
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). The PCRA Court dismissed Stoneking's PCRA petition as untimely, and this Court is bound by that timeliness determination. See Sistrunk v. Rozum, 674 F.3d 181, 189 (3d Cir. 2012). Because an untimely petition is not “properly filed, ” the PCRA petition did not toll Petitioner's one year limitations period under AEDPA and the habeas petition remains untimely. See Pace, 544 U.S. at 417.
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).
Petitioner has provided no grounds for why the one-year limitations period set forth in §2244(d)(1)(A) does not apply to Claims 2 and 3 of the Petition.
2. Alternative Start Date of Limitations Period
In Count One of the Petition, Stoneking argues he is entitled to habeas relief because the statute applied at his sentencing, Megan's Law III, imposed unconstitutional sex offender registration requirements and SORNA, as applied to him, is unconstitutional because it has been applied retroactively. Construed liberally, Petitioner is alleging that Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), or Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), warrant an alternative start date under 28 U.S.C. § 2244(d)(1)(C) or (D). Estelle v. Gamble, 429 U.S. 97, 106 (1976) (requiring liberal construction of pro se pleadings). The undersigned finds this argument to be without merit.
Megan's Law has gone through four iterations since its 1995 enactment. Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). When Stoneking was sentenced in 2010, Megan's Law III was in effect. In December 2013, the Pennsylvania Supreme Court struck down that entire statute for violating the state constitution's single subject rule. Id. at 616. Megan's Law III was replaced by SORNA, which applied retroactively to any sex offender who had not completed his sentence or registration period as of December 20, 2012. See 42 Pa. C.S. § 9799.13; Muniz, 164 A.3d at 1193 n.3.
In his federal habeas petition, Stoneking references both Neiman and Muniz. The undersigned will liberally construe his petition as arguing for an alternative start date for Claim One based on both Neiman and Muniz. However, Neiman was decided on state law grounds and, thus, cannot create a cognizable federal claim. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Muniz, decided by the Supreme Court of Pennsylvania in July 2017, was decided on federal and state grounds. Even if Stoneking's one-year limitations period for Claim One restarted in July 2017 under § 2244(d)(1)(C) or (D), he fails to explain why he waited approximately four years after the Muniz decision to file his petition in this Court.
3. Equitable Tolling
The habeas limitations period can be tolled in rare circumstances when “principles of equity would make [its] rigid application unfair.” Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80. 89 (3d Cir. 2013). There is no indication in this 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). “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 Stoneking 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. Further, Stoneking 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. Stoneking has not shown that this 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 Stoneking is not entitled to equitable tolling. Consequently, a certificate of appealability should be denied.
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, Stoneking, because he is a non-electronically registered party, must file objections to this Report and Recommendation by January 6, 2022, and Respondent, because it is an electronically registered party, must file objections, if any, by January 3, 2022. 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).