Opinion
2:18-cv-910
01-14-2019
HENRY NOAH EARLEY, KL-7138, Petitioner, v. DISTRICT ATTORNEY OF FAYETTE COUNTY, et al., Respondents.
REPORT and RECOMMENDATION I. Recommendation:
It is respectfully recommended that the petition of Henry Noah Earley for a writ of habeas corpus (ECF No.4) be dismissed as untimely and because reasonable jurists could not conclude that a basis for appeal exists that a certificate of appealability be denied. II. Report:
Henry Noah Earley, an inmate at the State Correctional Institution-Greene has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis.
Earley is presently serving a twenty to forty-year sentence imposed on March 6, 2012 upon a plea of guilty but mentally ill to one count of third degree murder at No. CP-26-CR-548-2010 in the Court of Common Pleas of Fayette County, Pennsylvania. No appeal was pursued.
On the date of sentencing, the court entered an Order stating "that the Commonwealth has proved beyond a reasonable doubt not only the commission of the offense itself... but also that the defendant was mentally ill but not legally insane at the time of the commission of the act." See: Exhibit 2 to the Response.
See: Petition at ¶¶ 1-6 and Response Exhibit 3.
See: Exhibit 4 to the Response at pp. 20-21.
On February 10, 2016 Earley filed a post-conviction petition. The latter was dismissed as lacking merit on July 6, 2016. On April 25, 2017, Earley filed a "petition for leave to appeal nunc pro tunc." The petition was treated as a second post-conviction petition and dismissed on May 24, 2017 as untimely when the court concluded that "no issues which fall within the purview of one of the exceptions to the PCRA statute's timeliness mandate" had been demonstrated. A timely notice of appeal was filed and on May 1, 2018 the denial of relief based on untimeliness was affirmed. 2018 WL 2016374 (Pa.Super. 2018). In reaching its decision, the Superior Court wrote:
Id. at p.21 and Exhibit 5 to the Response.
See: Exhibit 6 to the Response.
See: Exhibit 7 to the Response.
See: Exhibit 8 to the Response.
Even if Earley had pled the exceptions he argues on appeal, he would be due no relief. Earley essentially argues that his persistent mental illness constitutes an "unknown fact" and therefore qualifies for the timeliness exception... However ... Earley was required to file his petition within 60 days of learning of this "unknown fact." Earley admits in his appellate brief, and his plea of guilty but mentally ill reflects, that all parties, including Earley, were aware of Earley's mental illness prior to his guilty plea in 2012... He cannot show that he filed his PCRA petition within 60 days of learning of his persistent mental illness. Thus, he would not have been able to qualify for the exception...Id. at *2.
In the instant petition executed on May 15, 2018, Earley alleges he is entitled to relief on the following grounds:
1. Ineffective assistance of counsel for failure [to] advise defendant of the factual basis for his plea.
2. Illegal inducement of guilty plea[. P]lea was not knowing, voluntary or intelligent.
3. Failure to advise petitioner of possible defenses of arguable merit available to petitioner.
4. Failure to advise petitioner of his right to withdraw his plea within [ten] (10) days.
See: Petition at ¶ 12.
It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:
(1) A 1-year period of limitation shall apply to the 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;An untimely post-conviction petition is not "properly filed". Pace v. DiGulglielmo, 544 U.S. 408 (2005).
(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.
In the instant case, petitioner entered his plea and was sentenced on March 6, 2012 and no appeal was pursued. Thus, his conviction became final on April 5, 2012 when the time in which to appeal expired. Rule 903 Pa.R.A.P. Gonzalez v. Thaler, 132 S.Ct. 641 (2012). The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here. The petitioner did not seek post-conviction relief until February 10, 2016 or almost four years after his conviction became final. That petition was denied as lacking in merit on July 6, 2016. His request for leave to appeal nunc pro tunc was treated as a second post-conviction petition when it was filed on April 25, 2017. That petition was dismissed as untimely and the dismissal as untimely was affirmed by the Superior Court on May 1, 2018.
The instant petition was executed on May 15, 2018. Thus, combining the delay in initially seeking post-conviction relief with the delay in seeking relief here, far in excess of the one year period in which to seek federal relief has expired, and the petition here is time barred unless the petitioner can demonstrate cause for this delay.
In his traverse, Earley writes,
petitioner never claimed to have "just learned of his persistent mental illness." Petitioner's claim was that Prison Legal Aide had just made him aware of his rights that his court appointed counsel failed to make him aware of prior to, during, or after the plea phase of his criminal case. As soon as petitioner was "made aware" of his rights, and his
counsel's errors, he diligently pursued PCRA relief in the courts below.
From PCRA until the instant petition, Petitioner was/is 100% dependent on Prison Legal Aide to assist him with his filings due not only to his psychiatric disorders, but also his low I.Q. and his complete inability to comprehend even the simplest of rudimentary legal concepts. (ECF No. 19 p.3) (emphasis in original).
As noted above, at the time of sentencing, the trial court wrote:
AND NOW, this 6th day of March, 2012, after hearing it is the determination of the Court that the Commonwealth has proved beyond a reasonable doubt not only the commission of the offense itself of third degree murder but also that the defendant was mentally ill but not legally insane at the time of the commission of the act. We also make a determination, based on the uncontradicted testimony before us, that the defendant is in need of treatment.
See: Exhibit 2 to the Response. --------
As both the trial and Superior Courts observed, there is nothing in the record which would demonstrate that the petitioner was unaware of his mental condition as early as the time when he entered his plea in 2012. In a similar manner, we conclude here that there is no basis for reaching a conclusion that good cause existed for petitioner's failures to raise his federal issues in a timely manner.
Because petitioner's conviction was not obtained in any manner contrary to federal law as determined by the Supreme Court, nor involved an unreasonable application of those decisions, he is not entitled to relief here. Accordingly, it is recommended that the petition of Henry Noah Earley for a writ of habeas corpus be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections within fourteen (14) days of this date and mailing them to United States District Court, 700 Grant Street, Pittsburgh PA 15219-1957. Failure to file timely objections will waive the right to appeal.
Respectfully submitted,
s/ Robert C. Mitchell
United States Magistrate Judge Filed: January 14, 2019