Opinion
Civil Action No. 04-2243.
September 10, 2004.
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Felix Trevino ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is currently incarcerated in the State Correctional Institution at Huntingdon, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response thereto, and the exhibits attached to those pleadings.
On September 21, 2000, Petitioner was convicted by a jury before the Honorable Paul K. Allison in the Court of Common Pleas of Lancaster County of aggravated assault, rioting, and disorderly conduct. Judge Allison sentenced Petitioner on October 27, 2000, to an aggregate sentence of ten to twenty years imprisonment. On November 6, 2000, Petitioner filed timely post-verdict motions for a new trial, alleging that the evidence was insufficient to convict him of aggravated assault, the verdict was against the weight of the evidence, and the prosecutor made improper remarks during his closing argument. The trial court denied the post-verdict motions on February 21, 2001. Petitioner also filed a motion to modify or reduce his sentence, alleging that the trial court failed to sentence him within the sentencing guidelines and imposed a sentence that was unreasonable and excessive. That motion was denied on December 7, 2000.
Petitioner filed a direct appeal with the Pennsylvania Superior Court on November 22, 2000, which he later withdrew pending the trial court's resolution of his post-verdict motions. Following the denial of the post-verdict motions, Petitioner filed a second notice of appeal on March 15, 2001. Petitioner raised five issues in that appeal, one of which was whether the trial court abused its discretion in sentencing Petitioner and whether the trial court provided sufficient reasoning for its sentence. The Superior Court found all of Petitioner's issues meritless except the sentencing issue, and remanded the case for resentencing because the sentencing court failed to adequately indicate the reasons that it was imposing a sentence beyond the aggravated range of the sentencing guidelines. See Resp., Ex. A, pp. 5-7. Petitioner was re-sentenced on January 31, 2002, to the same aggregate sentence of ten to twenty years. Judge Allison noted that he was departing from the guideline ranges based on the evidence at trial. Judge Allison specifically stated:
I have decided to depart from the guidelines. And I'm going to impose basically the same sentence that I imposed before.
Frankly, I think this case deserves it. I did make a slip of the tongue because I realized — obviously, I had the guidelines in front of me, and that was beyond the aggravated range. And it was a slip of the tongue that caused this case to come back, in my opinion.
I'm imposing this sentence after considering the testimony produced at trial, the circumstances of the offense. And I weighed the factors, such as the injuries to Officer Will, who sustained permanent brain damage and has gone through a lot of suffering as a result of this.
I believe that a lesser sentence would depreciate the gravity of the offense and could condone it. This incident involved a police officer who was performing his duty.
He was called to a scene where there were gunshots fired in the vicinity. There was a crowd of I recall, somewhere around a hundred people to 200, but in around a hundred.
There was a chaotic situation. He was hit over the head with a brick, as has been indicated. He was fighting — he had chased the assailant and was engaged in a fight near a white car in a small confined area. And Officer Will specifically said that he was hit over the head — or I guess that he — the last thing he remembered seeing before going to the hospital was the Defendant holding the 22 ounce beer bottle with his arm raised.
There were other people that place him at that scene. He was not the — the officer was not the only one that said that the Defendant was engaged in a scuffle with the officer.
According to my recollection of the testimony at the hearing, he had already been hurt once when he was hit in the head.
I cannot, in good conscience, impose a sentence lesser than the maximum sentence for an aggravated assault.
I think that the Defendant is fortunate that the blow did not kill the officer. It very well could have been a fatal injury. I, therefore, consider, in my opinion, that a sentence less than the maximum possible sentence for an aggravated assault, F-1, is too lenient and not a sufficient deterrent for behavior of this kind. And I will not impose anything less than a 10 to 20 year sentence on the aggravated assault count.
I believe the jury rendered a correct verdict from the evidence that was presented before it. And I also have not seen any indication that the Defendant has shown remorse.
He did send me a letter that was included in the things that I considered before imposing the sentence in which he denied guilt. I, therefore, am going to impose a sentence of 10 to 20 years, no fine, but costs.
. . . .
Civil society can't tolerate this type of behavior. We have people who obey the police officers in a situation like this.
This thing got completely out of hand. And the defendant, I believe, contributed to it, to the malay [sic] that occurred.
There were several police officers. I think they even had assistance with outside forces to deal with the riot that occurred in this case.
On the riot charge, I'm going to make a sentence of 3 to 23 months, which is concurrent, plus costs.
And on Count 4, one year probation, which is also concurrent, plus costs.
That is a state sentence, as the first one was.
N.T., 1/31/02, pp. 15-17, 18; Resp., Ex. D. Petitioner did not appeal from the re-sentencing.
On January 9, 2003, Petitioner filed a pro se application to appeal nunc pro tunc with the Pennsylvania Superior Court. The Superior Court denied the application on October 10, 2003 for lack of jurisdiction. Petitioner also filed a pro se appeal with the Superior Court which was denied for lack of jurisdiction on December 9, 2003.
On July 29, 2004, Petitioner filed the instant pro se habeas Petition containing one claim, that his sentence was illegal because the trial court imposed a sentence outside of the guidelines but within the statutory limits at his re-sentencing hearing. (Pet., p. 9.) On July 19, 2004, the Honorable Harvey Bartle, III referred this case for preparation of a Report and Recommendation. A Chambers' copy of the Response to the Petition was received on September 9, 2004, indicating that the original Response was mailed by Respondents for filing with the Clerk of Courts on September 7, 2004. Respondents contend that the Petition is time-barred, and even if it is not time-barred, the claims are procedurally defaulted.
II. DISCUSSION.
Petitioner's case must be decided pursuant to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996. Pub.L. 104-132, 110 Stat. 1214. Section 104(2) of the AEDPA amended 42 U.S.C. section 2254, the statute under which this Petition was filed, requires that federal courts give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C. section 2244 to require that:
(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.28 U.S.C. § 2244(d)(1). In this case, Petitioner's convictions became final on or about March 2, 2002, thirty days following his re-sentencing, the time period within which Petitioner could have filed an appeal with the Superior Court. Petitioner therefore had until March 2, 2003, to file a timely habeas petition. The instant Petition was not filed until July 29, 2004, nearly seventeen months following the lapse of the AEDPA statute of limitations. The Petition is therefore time-barred.
Because Petitioner never filed a motion for state post-conviction or other collateral review, the AEDPA statute of limitations was not tolled pursuant to 28 U.S.C. § 2244(d)(2). One opportunity for relief from the time-bar may remain for Petitioner, however, because the statute of limitations in the AEDPA is subject to equitable tolling. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 124 S.Ct. 48 (2003) (citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998) (citation omitted)). "[E]quitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.'" Miller, 145 F.3d at 618 (quoting Shendock v. Dir., Ofc. of Workers' Comp. Programs, 893 F.2d 1458, 1462 (3d Cir.) (en banc), cert. denied, 498 U.S. 826 (1990)). The Petitioner "must show that he . . . `exercised reasonable diligence in investigating and bringing [his] claims.' Mere excusable neglect is not sufficient." Id. (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) and citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). The United States Court of Appeals for the Third Circuit has set forth the following three circumstances in which equitable tolling is permitted: (1) if the [Respondent] has actively misled the [Petitioner]; (2) if the [Petitioner] has in some extraordinary way been prevented from asserting his rights, or (3) if the [Petitioner] has timely asserted his rights mistakenly in the wrong forum. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001) (citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted)). Because none of the circumstances for equitable tolling are applicable to this case, the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
Although Respondents also argue that Petitioner's claims are procedurally defaulted, because the Petition is clearly time-barred, Respondent's arguments are not examined or addressed by this Court.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of September, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.