Opinion
Civil Action No. 19 - 403
03-08-2021
RASHAD BRISCOE, Petitioner, v. MARK GARMAN and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
District Judge Robert J. Colville
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 3) be dismissed as untimely or, in the alternative, be denied. It is also recommended 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 Rashad Briscoe ("Petitioner") pursuant to 28 U.S.C. § 2254. (ECF No. 3.) Petitioner challenges his 2009 judgment of sentence imposed by the Court of Common Pleas of Allegheny County after he was found guilty of second-degree murder, robbery, criminal conspiracy and carrying a firearm without a license. For the following reasons, the Petition should be dismissed as untimely or, in the alternative, be denied.
A. Procedural Summary
By Criminal Information filed at CP-02-CR-16221-2008, the Commonwealth of Pennsylvania charged Petitioner with one count each of criminal homicide, robbery, criminal conspiracy and carrying a firearm without a license. (Resp't Exh. 2, ECF No. 11-1, pp.17-19.) On August 31, 2009, Petitioner and his co-defendant, Christopher Moore ("Moore"), appeared before the Honorable Edward J. Borkowski ("the trial court" and "the PCRA court") and proceeded to a jury trial. (Resp't Exh. 3, ECF No. 11-1, p.20.) On September 2, 2009, Petitioner was found guilty of second-degree murder, robbery, criminal conspiracy and carrying a firearm without a license. Id. On December 3, 2009, Petitioner was sentenced to life imprisonment at Count 1, second-degree murder. At Count 2, robbery, Petitioner was sentenced to seven to fourteen years' imprisonment, consecutive to Count 1. At Count 3, criminal conspiracy, Petitioner was sentenced to five to ten years' imprisonment, consecutive to Count 2. At Count 4, carrying a firearm without a license, Petitioner was sentenced to two to four years' imprisonment, consecutive to Count 3. (Resp't Exh. 4, ECF No. 11-1, pp.21-22.) Petitioner filed post-sentence motions on December 8, 2009, which were denied on March 4, 2010. (Resp't Exh. 5, ECF No. 11-1, pp.23-30); (Resp't Exh. 6, ECF No. 11-1, p.31.)
Moore was charged with criminal homicide, robbery and criminal conspiracy and he was found guilty of second-degree murder, robbery and criminal conspiracy. See Commonwealth v. Moore, CP-02-CR-15306-2008 (Allegheny Cty. Ct. Comm. Pleas).
Petitioner appealed his judgment of sentence. (Resp't Exh. 7, ECF No. 11-1, pp.32-39.) The Superior Court of Pennsylvania docketed the appeal at 522 WDA 2010. (Resp't Exh. 11, ECF No. 11-2, pp.18-21.) On July 15, 2010, Petitioner filed a Concise Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). (Resp't Exh. 8, ECF No. 11-1, pp.40- 47.) On October 24, 2011, Judge Borkowski filed his Opinion pursuant to Pa. R.A.P. 1925(a). (Resp't Exh. 10, ECF No. 11-2, pp.10-17.) On March 20, 2012, the Superior Court affirmed in part and vacated in part the judgment of the Court of Common Pleas. (Resp't Exh. 14, ECF No. 11-5, pp.1-9.) The Superior Court vacated the separate judgment of sentence for the robbery conviction but affirmed the judgment of sentence in all other respects. Id. Petitioner did not file a petition for allowance of appeal in the Supreme Court of Pennsylvania.
On December 3, 2010, while his direct appeal was still pending, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA") ("2010 PCRA petition"), in which he claimed that his counsel was ineffective for failing to file a direct appeal. (Resp't Exh. 9, ECF No. 11-2, pp.1-9.) The 2010 PCRA petition was never responded to or ruled on by the PCRA court. On March 5, 2016, Petitioner filed pro se what he titled an "Amendment/Supplement" PCRA petition ("2016 PCRA petition"), in which he claimed that direct appeal counsel was ineffective for failing to file a petition for allowance of appeal. (Resp't Exh. 15, ECF No. 11-6, pp.1-21.) The PCRA court appointed counsel to represent Petitioner who, on May 9, 2016, filed on behalf of Petitioner an Amended PCRA petition and Brief in Support thereof. (Resp't Exh. 16, ECF No. 11-6, pp.22-45.) On May 17, 2016, Petitioner, through counsel, filed an Amendment to the PCRA petition. (Resp't Exh. 17, ECF No. 11-7, pp.1-6.) On May 19, 2016, counsel for Petitioner filed a Motion to Withdraw and Turner/Finley No-Merit letter asserting that Petitioner's pro se 2016 PCRA petition was untimely filed. (Resp't Exh. 18, ECF No. 11-7, pp.7-19.) On June 6, 2016, Petitioner filed a pro se letter objecting to the dismissal of his petition. (Resp't Exh. 19, ECF No. 11-7, p.20.) On July 22, 2016, the PCRA court filed a Notice of Intent to Dismiss the PCRA petitions that were filed both pro se and with counsel. (Resp't Exh. 20, ECF No. 11-7, pp.21-23.) On August 25, 2016, Petitioner filed a pro se response to the PCRA court's Notice of Intent to Dismiss. (Resp't Exh. 21, ECF No. 11-7, pp.24-31.) On August 25, 2016, the PCRA court denied Petitioner PCRA relief after finding that his 2016 PCRA petition was untimely filed. (Resp't Exh. 22, ECF No. 11-7, p.32.)
Petitioner appealed the denial of PCRA relief. (Resp't Exh. 23, ECF No. 11-7, pp.33-37.) The Superior Court docketed the appeal at 1769 WDA 2019. (Resp't Exh. 25, ECF No. 12-1, pp.1-4.) On December 5, 2016, the PCRA court issued an Order adopting the PCRA court's reasons for denying PCRA relief set forth in its July 22, 2016 Notice of Intent to Dismiss as its Opinion pursuant to Pa. R.A.P. 1925(a). (Resp't Exh. 24, ECF No. 11-7, p.38.) On December 14, 2016, the Superior Court remanded the case for an inquiry into whether Petitioner currently had counsel. (Resp't Exh. 26, ECF No. 12-1, pp.5-6.) On January 23, 2017, the PCRA court appointed counsel for Petitioner. (Resp't Exh. 27, ECF No. 12-1, p.7.) On March 24, 2017, the Superior Court dismissed the appeal because Petitioner had failed to file a brief. (Resp't Exh. 28, ECF No. 12-1, p.8.)
On April 19, 2017, Petitioner, through counsel, filed another PCRA petition, which sought reinstatement of Petitioner's appellate rights as to the denial of his 2016 PCRA petition. (Resp't Exh. 29, ECF No. 12-1, pp.9-17.) On April 24, 2017, the PCRA court granted the petition and reinstated Petitioner's appellate rights. (Resp't Exh. 30, ECF No. 12-1, p.18.)
On April 28, 2017, Petitioner, through counsel, filed a notice of appeal nunc pro tunc. (Resp't Exh. 31, ECF No. 12-1, pp.19-39.) The Superior Court docketed the appeal at 651 WDA 2017. (Resp't Exh. 33, ECF No. 12-1, pp.41-44.) On May 2, 2017, the PCRA court issued an Order adopting the July 22, 2016 Notice of Intent to Dismiss as its Pa. R.A.P. 1925(a) Opinion. (Resp't Exh. 32, ECF No. 12-1, p.40.) On October 31, 2017, the Superior Court affirmed the denial of PCRA relief after finding that the 2016 PCRA petition was untimely filed. (Resp't Exh. 37, ECF No. 12-4, pp.10-19.) On November 30, 2017, Petitioner, through counsel, filed a Petition for Allowance of Appeal. (Resp't Exh. 39, ECF No. 12-5, pp.1-39.) The Supreme Court docketed the appeal at 442 WAL 2017. (Resp't Exh. 38, ECF No. 12-4, pp.20-22.) On April 3, 2018, the Supreme Court denied the petition. (Resp't Exh. 40, ECF No. 12-5, p.40.)
Petitioner initiated the instant habeas proceedings on March 30, 2019. (ECF No. 1.) His Petition was thereafter docketed on May 24, 2019. (ECF No. 3.) Respondents filed their Answer to the Petition on July 1, 2019. (ECF Nos. 8, 11-12.)
This is the filing date pursuant to the prison mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988).
B. Factual Summary
The underlying facts of this matter, as summarized by the trial court, are as follows:
In the evening hours of July 6, 2006 Rashad Briscoe (Appellant), Christopher Moore, and Leron Beck were together in the Hill District section of the City of Pittsburgh, Allegheny County. The three (3) men decided to rob somebody in order to obtain money to buy drugs. They first stole a vehicle and then began to ride around looking for a victim. Eventually they drove to the Lawrenceville section of the city where they observed Michael Vaughns (victim) standing at a bus stop on the corner of Butler and 44th streets. (T.T. 53-54, 64-65)[Footnote 6], See recorded statement of Rashad Briscoe and transcript (pages 3-8), Commonwealth trial exhibit number 25, 26. The victim was with his brother, Eric Vaughns, and a friend, Price Riley. (T.T. 53, 64) They had attended a nearby street fair, and the victim was waiting for a bus to return to his home. (T.T. 53-54) He was wearing a gold chain with a cross around his neck. (T.T. 59)
Appellant and his accomplices drove slowly past the victim as he stood with his brother and friend. (T.T. 54, 65) They noticed the gold chain the victim was wearing, and it was decided that he would be the target of the robbery. The vehicle traveled around the corner onto 44th Street and then into a nearby alley where they parked. (T.T. 70) Appellant existed the vehicle armed with co-defendant Moore's 9-millimeter semi-automatic handgun and returned to Butler Street. (T.T. 98-99) Once there he put the gun to the victim's face and demanded [the] victim's chain. (T.T. 57-58, 68-69)
Appellant did not give the victim a chance to comply, rather he yanked the chain from the victim's neck and shot him in the right side of the face. (T.T. 41, 57-58, 68-69, 77) Appellant ran back to the waiting vehicle and they fled the area. (T.T. 70) Appellant, Moore, and Beck returned to the Hill District where the chain was sold for $200, which in turn was used to buy beer, marijuana and crack cocaine. See recorded statement of Rashad Briscoe and transcript (page 5), Commonwealth trial exhibit number 25, 26.(Resp't Exh. 10, 11-2, pp.12-15.)
The victim was emergently transported and hospitalized, but died from the gunshot wound on July 17, 2006. (T.T. 51) The bullet traveled through his face and into his neck where it fractured his cervical spine and neural arch. (T.T. 41) These injuries caused oxygen deprivation to the brain, irreversible brain injury, and death. (T.T. 41, 43)
The case went unsolved until mid-September 2008 when detectives from the homicide cold case squad noticed that, in reviewing a crime lab report from a July 15, 2006 shooting which co-defendant Moore was involved in, reference was made that the weapon used by Moore on July 15, 2006 matched the weapon used in the shooting of Michael Vaughns herein. (T.T. 123) As a result of that information Moore was formally interviewed on September 25, 2008, and he provided a recorded statement in which he implicated himself, Appellant Briscoe, and Leron Beck. Based on the information provided by Moore, Appellant was formally interviewed on September 26, 2008 and he also provided a recorded statement in which he admitted to being the shooter in this matter. Moore and Appellant were arrested and charged as noted hereinabove [Footnote 7].
[Footnote 6] "T.T." refers to Trial Transcript of August 31-September 2, 2009.
[Footnote 7] Leron Beck was never charged in this matter. (T.T. 127-128)
C. Discussion
Petitioner raises three claims in his Petition. In Petitioner's first claim, he argues that the Commonwealth introduced at trial an ineffectively redacted statement of his non-testifying co-defendant, Moore, in violation of his right to confrontation under the Sixth Amendment to the United States Constitution. In his second claim, Petitioner argues that his trial counsel was ineffective for failing to object to the introduction of Moore's ineffectively redacted statement. In his third claim, Petitioner argues that his direct appeal counsel was ineffective for failing to file a petition for allowance of appeal despite his request that counsel do so on his behalf.
1. The Petition should be dismissed as untimely.
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.
28 U.S.C. § 2244(d).
(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 section.
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 statutory exceptions or equitable tolling should be applied on the facts presented.
Here, it appears that the "trigger date" for all of Petitioner's claims is the date on which his judgment of sentence became final, which in this case was April 19, 2012, the last day Petitioner had to file a petition for allowance of appeal in the Supreme Court of Pennsylvania after the Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence on March 20, 2012. See 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 April 20, 2012, and, absent any tolling for "properly filed" applications for post-conviction relief, Petitioner had until April 20, 2013, to file a timely federal habeas petition challenging his judgment of sentence. As previously noted, however, Petitioner did not file his Petition in this case until March 30, 2019, almost six years later. Accordingly, the Court must next determine whether Petitioner can take advantage of the tolling provision in section 2244(d)(2).
Respondents miscalculate the statute of limitations in their Answer because they incorrectly state that the Superior Court's direct appeal opinion was issued on May 1, 2012. While the opinion appears to have been filed on the Court of Common Pleas' docket on May 1, 2012, the opinion itself was issued by the Superior Court on March 20, 2012.
Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a "properly filed" state post-conviction proceeding. The undersigned recognizes that Petitioner filed two PCRA petitions, the 2010 PCRA petition, which was never ruled on by the PCRA court, and the 2016 PCRA petition, for which appeal proceedings concluded on April 3, 2018. Petitioner maintains that his Petition in this case was timely filed because it was filed within a year after his PCRA proceedings concluded on April 3, 2018. Thus, what is implied in Petitioner's argument is that he believes he is entitled to tolling from the date he filed his first PCRA petition, on December 3, 2010, until the date his appeal proceedings concluded on his second PCRA petition, on April 3, 2018. The undersigned will therefore address whether either of his PCRA petitions were "properly filed" within the meaning of section 2244(d)(2) such that Petitioner would be entitled to statutory tolling during the time they were pending in state court.
With respect to Petitioner's first PCRA petition, the 2010 PCRA petition, which the PCRA court did not respond to or rule on, said petition was later found to be a legal nullity by the Superior Court for two reasons. First, because Petitioner filed it while his direct appeal was still pending, and thus the PCRA court had no jurisdiction to address it, and second, because he was represented by counsel at the time he filed the petition, and thus it was properly disregarded as an improper hybrid filing. (Resp't Exh. 37, ECF No. 12-4, pp.13-18.) A federal habeas court applying AEDPA "must look to state law governing when a petition for collateral relief is 'properly filed'" and "defer to a state's highest court when it rules on an issue." Merritt v. Blaine, 326 F.3d 157, 165 (3d Cir. 2003) (quoting Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir. 2001)). Here, the Superior Court found, as a matter of state law, that Petitioner's 2010 PCRA petition was a legal nullity because, inter alia, it was prematurely filed before his judgment of sentence became final, and this Court must defer to the Superior Court's finding. It thus follows that Petitioner's 2010 PCRA petition was not "properly filed" under AEDPA and did not toll any portion of the AEDPA limitations period. See, e.g., Shine v. Algarin, No. 19-5341, 2020 WL 5443240, at *3 (E.D. Pa. July 30, 2020), report and recommendation adopted, 2020 WL 5440509 (Sept. 9, 2020) (finding that the petitioner's PCRA petition that was prematurely filed during the pendency of his direct appeal was not properly filed); Kennedy v. District Attorney of County of Chester, No. 16-2254, 2016 WL 10644557, at *3 (E.D. Pa. Sept. 28, 2016), report and recommendation adopted, 2017 WL 5952153 (E.D. Pa. Nov. 30, 2017) (finding that a PCRA petition dismissed as premature because the petitioner's previous PCRA appeal was still pending was not properly filed).
The PCRA petition consisted of only one paragraph and alleged that Petitioner's trial counsel was ineffective for failing to file a direct appeal. In actuality, counsel did file a direct appeal, which was pending at the time the PCRA petition was filed.
The PCRA "has no applicability until the judgment of sentence becomes final." Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002); see also Commonwealth v. Seay, 814 A.2d 1240, 1241 (Pa. Super. 2003); Commonwealth v. Leslie, 757 A.2d 984, 986 (Pa. Super. 2000) ("A PCRA petition may only be filed after an appellate has waived or exhausted his direct appeal rights[,]" and trial court lacked jurisdiction to proceed on PCRA petition during pendency of direct appeal).
Under Pennsylvania state law, pro se filings by a defendant who is represented by counsel are not reviewable. See Commonwealth v. Tedford, 960 A.2d 1, 10 n.4 (Pa. 2008) ("[The Pennsylvania Supreme Court] made clear that a criminal defendant currently represented by counsel is not entitled to 'hybrid representation' i.e., he cannot litigate certain issues pro se while counsel forwards other claims."); see also Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (holding defendant's filings were a legal nullity where filed pro se while represented); Commonwealth v. Reid, 642 A.2d 453, 462 (Pa. 1994) (where appellant is represented by counsel, his pro se filings are "improper and will not be considered"); Commonwealth v. Penrose, 669 A.2d 996, 998 (Pa. Super. 1995) (same).
With respect to Petitioner's 2016 PCRA petition, the Superior Court affirmed the denial of PCRA relief after concluding that the petition was untimely filed and Petitioner had failed to plead and prove one of the statutory exceptions set forth in the PCRA. (Resp't Exh. 37, ECF No. 12-4, p.18) (citing 42 Pa. C.S. § 9545(b)(1), which gives a petitioner one year from the conclusion of direct review in which to file a timely PCRA petition, unless certain statutory exceptions to the time-bar apply). In Artuz v. Bennett, 531 U.S. 4 (2000), the United States Supreme Court addressed the timeliness of petitions vis-à-vis the "properly filed" requirement, holding that time limits on post-conviction petitions are "condition[s] to filing," such that an untimely petition would not be deemed "properly filed." Id. at 8, 11. The Supreme Court went a step further in Pace v. DiGuglielmo, 544 U.S. 408 (2005), and addressed "whether the existence of certain exceptions to a timely filing requirement can prevent a late application [for state post-conviction relief] from being considered improperly filed." Id. at 413. The Court resolved this question in the negative holing that "time limits, no matter their form, are 'filing' conditions" for purposes of statutory tolling under § 2254(d)(2), reasoning that "it must be the case that a petition that cannot even be initiated or considered due to the failure to include a timely claim is not 'properly filed.'" Id. at 417. Consequently, "[w]hen a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)." Id. at 414 (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)).
Based on the settled nature of the law as to what constitutes - or, more appropriately, does not constitute - a "properly filed" state post-conviction petition, it is clear that Petitioner's 2016 PCRA petition was also not "properly filed" because the Superior Court found that it was untimely and without jurisdiction to review it. Because there was a clear determination by the state court that Petitioner's 2016 PCRA petition was untimely "that [is] the end of the matter" for purposes of section 2244(d)(2) and Petitioner is not entitled to any statutory tolling during the time it was pending.
Additionally, the undersigned notes that the 2016 PCRA petition was filed after Petitioner's limitations period for filing a timely federal habeas petition had already expired on April 20, 2013, and, therefore, even if Petitioner's PCRA petition had been "properly filed" for purposes of section 2244(d)(2), it would have had no tolling effect in this case since there was no time left to toll. See, e.g., Morris v. Mazurkiewcz, No. 10-7174, 2011 WL 2708498, at *3 (E.D. Pa. June 8, 2011) ("[T]he PCRA petition was filed after the expiration of the AEDPA statute of limitations . . . and does not toll an already expired statute of limitations."), report and recommendation adopted, No. 10-7174, 2011 WL 2709181 (E.D. Pa. July 11, 2011); Perry v. Diguglielmo, No. 06-1560, 2008 WL 564981, at *7 (W.D. Pa. Feb. 29, 2008) ("While it is true that a properly filed PCRA petition tolls the running of AEDPA's statute of limitations, the PCRA petition must be filed before the limitations period runs out, otherwise there is nothing left to be tolled."); Fried v. Horn, No. 02-8314, 2003 WL 23142179, at *3 (E.D. Pa. Aug. 11, 2003) ("The section 2244 tolling provisions can only 'pause a clock that has not yet fully run'; they cannot 'restart the clock at zero.'" (quoting Blasi v. Attorney Gen. of the Commonwealth of Pa., 30 F.Supp.2d 481, 485 (M.D. Pa. 1998)), report and recommendation adopted, No. 02-8314, (E.D. Pa. Nov. 25, 2003).
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); see also McQuggin v. Perkins, 569 U.S. 383 (2013). Petitioner, however, has argued for the applicability of neither, but, even if he would have set forth an argument for the applicability of equitable tolling, the undersigned notes that such argument would be without merit because Petitioner did not pursue his rights diligently. In this regard, a petitioner is entitled to equitable tolling only if he shows that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland, 560 U.S. at 649 (citing Pace, 544 U.S. at 418). See also Ross v. Varano, 712 F.3d 784, 798-804 (3d Cir. 2013); United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013); Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). "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 Third Circuit has advised that:
"[t]here are no bright lines in determining whether equitable tolling is warranted in a given case." Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). Nevertheless, "courts must be sparing in their use of equitable tolling," Seitzinger v. Reading Hosp. & Medical Ctr., 165 F.3d 236, 239 (3d Cir. 1999), and should do so "only when the principles of equity would make the right application of a limitation period unfair." Miller [v. New Jersey State Dept. of Corr.], 145 F.3d [616, 618 (3d Cir. 1998)].Sistrunk, 674 F.3d at 190. "[E]ven in situations in which equitable tolling initially applies, a party must file suit within a reasonable period of time after realizing that such a suit has become necessary." Walker v. Frank, 56 F. A'ppx 577, 582 (3d Cir.2003) (citing Hentosh v. Herman M. Finch University of Health Sciences, 167 F.3d 1170, 1175 (7th Cir. 1999)). "A grant of equitable tolling, unlike statutory tolling, does not shift the deadline so that each day of tolling results in a one day postponement of the deadline." Ragan v. Horn, 598 F.Supp.2d 677, 680 (E.D. Pa. 2009) (citing Phillips v. Heine, 984 F.2d 489, 492 (D.C.Cir. 1993)). "Rather, once the 'extraordinary circumstances' justifying equitable tolling have disappeared, the petitioner must file as soon as 'reasonably possible'". Id. (quoting Walker, 56 F. App'x at 581-82). "The United States Court of Appeals for the Third Circuit has suggested that one month is a sufficient period of time for a petitioner to file a pro se habeas petition." Mitchell v. Beard, No. 06-4746, 2010 WL 1135998, at *1 n.3 (E.D. Pa., 2010) (citing Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003)). The Third Circuit has also held that eleven months is an unreasonable time to wait to file a habeas corpus petition. Id. (citing Walker, 56 F. App'x at 582 n.5). Here, Petitioner waited almost a full year (from April 3, 2018, to March 30, 2019), an unreasonably long time, to file his Petition in this case after the Pennsylvania Supreme Court denied his Petition for Allowance of Appeal in his PCRA proceedings following the Superior Court's ruling on the timeliness of his 2016 PCRA petition and the finding that his 2010 PCRA petition was a legal nullity. Therefore, Petitioner cannot show that he was pursuing his rights diligently and equitable tolling would not be appropriate in this case. As such, the Petition should be dismissed since it was untimely filed.
2. Alternatively , the Petition should be denied.
i. Claim one
In Petitioner's first claim he argues that he is entitled to habeas relief because the Commonwealth introduced an ineffectively redacted statement of a non-testifying co-defendant in violation of the Sixth Amendment's Confrontation Clause. Specifically, he claims that the statement given to the police by his co-defendant, Moore, that was introduced at trial was not properly redacted in compliance with Bruton v. United States, 391 U.S. 123 (1968). To put this claim in context, both Petitioner and Moore gave statements to police which were introduced at trial. According to the state court opinions, the statements were redacted to omit any reference by name to the other party and the trial judge instructed the jury several times that each defendant's statement could only be used against that defendant and not against his co-defendant. Petitioner raised this claim on direct appeal, but the Superior Court found that the claim was not preserved for appellate review because Petitioner's trial counsel did not object to the introduction of Moore's statement into evidence or complain that the statement was not adequately redacted. Thus, the court found that the issue was waived. (Resp't Exh. 14, ECF No. 11-5, pp.4-8.)
The taped statements were not transcribed into the record and neither the recorded statements nor the transcripts of the statements appear in the original record.
Respondents maintain that the Superior Court's finding that this claim was waived results in a procedural default for purposes of federal habeas review, and the undersigned agrees. In this regard, the "adequate and independent state ground doctrine applies on federal habeas[,]" Harris v. Reed, 489 U.S. 255, 262 (1989) (citing Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977)), insofar as federal review is barred if claims are "defaulted . . . in state court pursuant to an independent and adequate state procedural rule." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In other words, "[t]he procedural default doctrine prohibits federal courts from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment." Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007). The requirements of "independence" and "adequacy" are distinct. Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004). State procedural grounds are not independent, and will not bar federal habeas relief, if the state law ground rested primarily on federal law or is so "interwoven with federal law" that it cannot be said to be independent of the merits of petitioner's federal claims. Coleman, 501 U.S. at 739-40. A state rule is "adequate" if it is "firmly established and regularly followed." Johnson v. Lee, 136 S. Ct. 1802, 1804 (2016) (citation omitted). These requirements ensure that "federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule[,]" and that "review is foreclosed by what may honestly be called 'rules' . . . of general applicability[,] rather than by whim or prejudice against a claim or claimant." Bronshtein v. Horn, 404 F.3d 700, 707, 708 (3d Cir. 2005).
Pennsylvania courts regularly and consistently apply the rule of waiver in multiple contexts, for example where, as is the case here, an issue is not properly preserved for appeal. See, e.g., Fillmore v. Hill, 665 A.2d 514, 516 (Pa. Super. 1995) ("Failure to timely object to a basic and fundamental error, such as an erroneous jury instruction, will result in waiver of that issue.") (citing Dilliplaine v. Lehigh Valley Trust Company, 322 A.2d 114, 116 (Pa. 1974)); Commonwealth v. Agie, 296 A.2d 741, 741 (Pa. 1972) ("We have consistently held that issues not raised in the court below are waived and cannot be raised for the first time on appeal to this Court.") (citations omitted); Commonwealth v. Steffish, 365 A.2d 865, 866 (Pa. Super. 1976); Commonwealth v. Perea, 381 A.2d 494, 496 (Pa. Super. 1977) ("The reason our review is confined to the one issue is because the other issues were not raised in the trial below or in post- verdict motions. The appellate courts of Pennsylvania have consistently held that issues not raised in the court below are waived and cannot be raised for the first time on appeal."); see also Thomas v. Secretary, Pennsylvania Dept. of Corrections, 495 F. App'x 200, 205-06 (3d Cir. Sept. 5, 2012) (noting the regularity with which the waiver rule is applied by Pennsylvania courts). For this reason, federal courts in Pennsylvania universally hold that Pennsylvania's waiver rule is an independent and adequate state law ground that precludes federal court review under the procedural default doctrine. See e.g., O'Halloran v. Ryan, 704 F.Supp. 70, 73-74 (E.D. Pa. 1989), aff'd, 887 F.2d 262 (3d Cir. 1989). Indeed, the Third Circuit has recognized that Pennsylvania law specifically and unambiguously provides that the failure to preserve an issue for appeal results in waiver of that issue, and because these state procedural laws speak in unmistakable terms, are firmly established and regularly followed in Pennsylvania, and are independent of federal law, the court has consistently held that waiver under such rules results in procedural default for purposes of federal court review. See Thomas, 495 F. App'x at 206; Werts v. Vaughn, 228 F.3d 178, 194 (3d Cir. 2000). Because the Superior Court in this case found that Petitioner waived his claim concerning the redacted statement of his co-defendant, and such waiver rule is independent of federal law and firmly established and regularly followed by Pennsylvania courts, claim one is procedurally defaulted.
Nevertheless, a petitioner whose constitutional claims have not been addressed on the merits due to a procedural default can overcome the default thereby allowing federal court review if he or she can demonstrate either: (1) "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law; or (2) that the failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In this case, Petitioner has not argued, much less demonstrated, the application of either. Accordingly, claim one is procedurally defaulted and not subject to federal habeas review.
ii. Claim two
In claim two, Petitioner argues that his trial counsel was ineffective for failing to object to the ineffectively redacted statement of his co-defendant referenced in claim one. Unlike claim one, however, Petitioner never raised this claim before the state courts at any point in time, and, for this reason, Respondents maintain that the claim is now procedurally defaulted. The undersigned agrees that this claim is procedurally defaulted because it was never fairly presented to the state courts and there are no additional state remedies for Petitioner to pursue now that he is barred from seeking further relief in the state courts. See Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012) ("Procedural default occurs when a claim has not been fairly presented to the state courts . . . and there is no additional state remedies available to pursue . . . or, when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule . . . .) (internal citations omitted). Like claim one, Petitioner has also failed to argue, much less demonstrate, the applicability of either exception to the procedural default doctrine. Accordingly, claim two is also procedurally defaulted and not subject to federal habeas review.
iii. Claim three
In his third claim, Petitioner argues that he is entitled to habeas relief because his direct appeal counsel, Joseph Rewis, abandoned him after the Superior Court affirmed his conviction and he did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania despite Petitioner's request that he do so.
The federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, limits the claims that a state prisoner can raise in a federal habeas proceeding to those that assert violations of the United States Constitution. See 28 U.S.C. § 2254(a). A claim of ineffectiveness of counsel is cognizable in a federal habeas proceeding only if there is a federal right to counsel at the stage when counsel is alleged to have been ineffective. See Coleman v. Thompson, 501 U.S. 722, 752 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.") (citations omitted). Here, at the point where Attorney Rewis is alleged to have been ineffective - during the discretionary appeal to the Supreme Court of Pennsylvania - Petitioner did not have a federal constitutional right to counsel. See Wainwright v. Torna, 455 U.S. 586, 587 (1982) (per curiam) (citing Ross v. Moffitt, 417 U.S. 600 (1974) and holding that there is no federal constitutional right to counsel when applying to state supreme court for discretionary review). Therefore, claim three is not cognizable on federal habeas review.
For all of the above reasons, the Petition should be denied in the alternative if the Court finds that Petitioner can overcome its untimely filing pursuant to the doctrine of equitable tolling.
D. 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. 3) be dismissed as untimely or, in the alternative, be denied. It is also recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and rule 72.D.2 of the Local Rules of Court, Petitioner is allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: March 8, 2021.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Rashad Briscoe
KC-0084
SCI Rockview
Box A
1 Rockview Place
Bellefonte, PA 16823
Counsel of Record
(via CM/ECF electronic mail)