McGinnis v. Shannon

Full title: VERNON E. MCGINNIS, JR., Petitioner, v. SUPERINTENDANT SHANNON, et al.…

Court: UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date published: Jan 14, 2020

Civil Action No. 2:05-cv-659 (W.D. Pa. Jan. 14, 2020)

Opinion

Civil Action No. 2:05-cv-659

01-14-2020

VERNON E. MCGINNIS, JR., Petitioner, v. SUPERINTENDANT SHANNON, et al., Respondents.

Magistrate Judge Patricia L. Dodge

Judge William S. Stickman
REPORT AND RECOMMENDATION

I. RECOMMENDATION

Pending before the Court is a Motion filed by state prisoner Vernon E. McGinnis, Jr., ("Petitioner"), which he purports to bring under Rule 60(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 14). For the reasons set forth below, it is respectfully recommended that the Court dismiss Petitioner's Motion and deny a certificate of appealability.

II. REPORT

A. Relevant Background

On April 9, 1997, Petitioner appeared before the Court of Common Pleas of Armstrong County at criminal case number CP-03-CR-547-1996 and pleaded guilty to the charge of first-degree murder for the fatal shooting of Edward Galvenek. On that same date, the court sentenced him to a term of life imprisonment. Commonwealth v. McGinnis, No. 883 WDA 2002, slip op. at 1 (Pa. Super. Ct. Dec. 18, 2003) ("McGinnis I").¹ Dennis Zawacki, Esq., represented Petitioner in his criminal case.

1 McGinnis I is located at ECF No. 4 at 164-73.

Petitioner did not file a direct appeal to the Superior Court of Pennsylvania following the imposition of his sentence on April 9, 1997. Therefore, his judgment of sentence became final under both state and federal law on May 9, 1997, when the time for him to file an appeal expired. McGinnis I, No. 883 WDA 2002, slip op. at 8; 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).

Petitioner initiated this federal habeas case in May 2005 with the filing of 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. 2). He claimed that he was entitled to federal habeas relief because his rights under Miranda v. Arizona, 384 U.S. 436 (1966) were violated at the time of his arrest and questioning by the police, during which he confessed to killing Mr. Galvenek.

In relevant part, AEDPA requires that a state prisoner must file his federal habeas claims within one year of the date his judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). The magistrate judge to whom this case was referred recommended that the Court dismiss the habeas petition as time-barred under AEDPA's one-year statute of limitations. (ECF No. 5). On June 14, 2005, the Court adopted the Report and Recommendation of the magistrate judge as the Opinion of the Court, dismissed Petitioner's habeas petition because he filed it outside AEDPA's statute of limitations, and closed this case. (ECF No. 7). The Court of Appeals denied Petitioner's subsequently application for a certificate of appealability, noting that Petitioner filed his habeas petition more than seven years beyond AEDPA's one-year deadline. (ECF No. 13).

Since the conclusion of this federal habeas case, Petitioner has filed in state court numerous unsuccessful petitions for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. See Commonwealth v. McGinnis, 782 WDA 2015, 2016 WL 379251 (Pa. Super. Ct. Jan. 26, 2016) ("McGinnis II"). Relevant to the instant Motion is the one Petitioner filed with the Court of Common Pleas (hereinafter the "PCRA court") in 2015, after his mother allegedly discovered a letter that Mr. Zawacki wrote to Petitioner's grandfather, Clifford Miller, less than a month before Petitioner entered his guilty plea. In the letter, which is dated March 11, 1997, Mr. Zawacki asked Mr. Miller (who was paying his legal fee) to use his influence to persuade Petitioner to plead guilty. Mr. Zawacki wrote that if Petitioner pleaded guilty, he would be released after serving ten years. (ECF No. 15-1 at 1). Petitioner contended in his PCRA petition that the letter was newly-discovered evidence that established that Mr. Zawacki provided him with ineffective assistance when he advised him to enter his plea.

The PCRA has its own one-year statute of limitations, which is codified at 42 PA. CONS. STAT. § 9545(b). It is jurisdictional, see, e.g., Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014), and it 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, unless the petition alleges and the petitioner proves that:

- - -

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence[.]

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(2) Any petition invoking an exception provided in paragraph (1) shall be filed within one year of the date the claim could have been presented.

42 PA. CONS. STAT. § 9545(b)(1)(ii), (2).

The PCRA court dismissed Petitioner's state petition as untimely, explaining:

[Petitioner] contends that the newly-discovered letter, written approximately one month before [he] entered his guilty plea, contains evidence that the plea was unlawfully induced because his prior attorney, Mr. Zawacki, told [his] grandfather that [Petitioner] would be afforded release after 10 years. Without considering the veracity of this statement, if, in fact, [Petitioner's] plea had been unlawfully-induced by promises of such release by either Mr. Zawacki or [Petitioner's] grandfather, or both, [Petitioner] would have been aware of those promises or representation both at the time he entered his guilty plea and at sentencing. The letter is only a newly-discovered source of evidence for the fact of those promises or representations that surfaced almost 18 years after [Petitioner] entered his guilty plea. Accordingly, because we find that the contents of the letter do not actually contain any new "facts" on which [Petitioner] could base his petition, we conclude that they cannot be used to establish the timeliness exception found at section 9545(b)(1)(ii).

McGinnis II, 782 WDA 2015, 2016 WL 379251 at * 2 (which attached the PCRA court's Rule 1925(a) Opinion) (emphasis added). Additionally, the PCRA court set forth facts of record that demonstrated that Petitioner was aware when he entered his guilty plea that he was facing a life sentence:

In the Guilty Plea Questionnaire executed by [Petitioner] on March 25, 1997, [he] acknowledged his understanding that he was pleading guilty to first degree murder, that the law required him to go to jail for life, and that no one promised him anything or forced him to enter his guilty plea.... [Petitioner's] sentencing order also clearly indicates that his sentence is for a term of incarceration for the duration of his natural life. See Sentencing Order, April 9, 1997.

Id. (Rule 1925(a) Opinion, n.2).

On January 29, 2016, the Superior Court issued McGinnis II, in which it affirmed the PCRA court's decision. The Supreme Court of Pennsylvania denied a petition for allowance of appeal on October 13, 2016. Commonwealth v. McGinnis, 158 A.3d 1241 (Pa. 2016).

Almost three years later, on August 30, 2019, Petitioner filed the pending Motion with this Court in which he seeks to re-open this federal habeas case under Rule 60(b)(6). He argues that Mr. Zawacki's March 11, 1997 letter to his grandfather is newly-discovered evidence of his innocence and, as such, provides him with what is commonly referred to as a "gateway" through which he can litigate otherwise procedurally defaulted and/or time-barred federal habeas claims. Schlup v. Delo, 513 U.S. 298 (1995) (showing of actual innocence enables a habeas petitioner to litigate procedural defaulted claims); McQuiggin v. Perkin, 569 U.S. 383 (2013) (extending the holding in Schlup to cases in which a petitioner's claims are time-barred under AEDPA's state of limitations). In his Motion, Petitioner lists six claims of ineffective assistance of counsel that he wants to litigate before this Court, all of which fault Mr. Zawacki's failure to investigate evidence pertaining to the shooting of Mr. Galvenek. (ECF No. 14 at 2-3).²

2 Petitioner also claims that the he was denied due process because the PCRA court did not appoint him counsel. This type of claim is not cognizable in a federal habeas action because "the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral [PCRA] proceeding does not enter into the habeas calculation." Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (internal citations omitted).

B. Discussion

Petitioner brings his Motion under Rule 60(b)(6), which requires him to "show extraordinary circumstances justifying the reopening of a final judgment." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (internal quotations and citations omitted). "Such circumstances will rarely occur in the habeas context." Id.

Because this is a federal habeas action, the first issue the Court must evaluate is whether Petitioner's Motion is a true Rule 60(b) motion or is an unauthorized second or successive habeas petition. Id. at 530-36. That is because AEDPA, as codified in relevant part at 28 U.S.C. § 2244(b), mandates that before a state prisoner may file a second or successive habeas petition in which he challenges a judgment of sentence that he previously challenged in a federal habeas action, he must first obtain an order from the appropriate court of appeals authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). See, e.g., Magwood v. Patterson, 561 U.S. 320, 330-31 (2010); United States v. Winkelman, 746 F.3d 134, 135 (3d Cir. 2014); In re Pendleton, 732 F.3d 280, 282 (3d Cir. 2013) (per curiam).³ AEDPA's allocation of "gatekeeping" responsibilities to the courts of appeal has divested district courts of jurisdiction over habeas applications that are second or successive. See, e.g., Burton v. Stewart, 549 U.S. 147 (2007). Petitioner cannot avoid AEDPA's second or successive gatekeeping mechanism by raising habeas claims in a filing that he designates as a Rule 60(b) motion. BRIAN R. MEANS, FEDERAL HABEAS MANUAL § 11:42, Westlaw (database updated May 2019) (a habeas petitioner "is not permitted to circumvent AEDPA's second or successive petition requirements simply by labeling the petition or motion as something other than what it is.").

3 Once a petitioner moves for authorization to file a second or successive petition, a three-judge panel of the court of appeals must decide whether there is a prima facie showing that the application satisfies § 2244's substantive requirements, which are set forth in § 2244(b)(2). See 28 U.S.C. § 2244(b)(3)(C).

In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court addressed the circumstances in which the utilization of Rule 60(b) is "inconsistent with" AEDPA's second or successive petition requirements and, as a consequence, not available to a state prisoner seeking habeas relief.⁴ It explained that a Rule 60(b) motion must be construed as a "second or successive habeas corpus application" when it advances one or more "claims." 545 U.S. at 531-32 (quoting § 2244(b)(1) and (2)). "In most cases," the Supreme Court observed, "determining whether a Rule 60(b) motion advances one or more 'claims' will be relatively simple." Id. at 532. "A motion that seeks to add a new ground for relief...will of course qualify." Id. Similarly, a motion that seeks to present newly-discovered evidence in support of a claim that was previously denied represents a habeas claim. Id. In contrast, a motion is a "true" Rule 60(b) motion if it challenges a procedural ruling made by the district court that precluded a merits determination of the habeas petition, id. at 532 n.4, or "challenges a defect in the integrity of the federal habeas proceedings," such as an assertion that the opposing party committed fraud upon the court, id. at 532.

4 "Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only 'to the extent that [it is] not inconsistent with' applicable federal statutory provisions and rules.'" Gonzalez, 545 U.S. at 529 (footnote omitted, bracketed text added by Supreme Court) (quoting what is now Rule 12 of the Rules Governing Section 2254 Cases).

Here, Petitioner does not expressly attack the procedural ruling that the Court made in dismissing his federal habeas petition on June 14, 2005. Moreover, he is clearly advancing habeas claims. Therefore, his Motion is an unauthorized second or successive habeas petition. Because he did not receive authorization from the Court of Appeals to file it, the Court must dismiss it for lack of jurisdiction.

Since Petitioner is proceeding pro se and the Court must construe his pleadings liberally, the Court could conclude that he is asserting, at least in part, that the Supreme Court's decision in McQuiggin v. Perkins, 569 U.S. 383 (2013) represents a change in the law since this Court issued its final judgment that amounts to an exceptional circumstance justifying Rule 60(b)(6) relief in this case. That is what the petitioner argued in Satterfield v. District Attorney Philadelphia, 872 F.3d 152 (3d Cir. 2017), the first case cited by Petitioner in his brief. (ECF No. 15 at 3). If in fact Petitioner is making the same argument, the Court should reject it.

In McQuiggin, the Supreme Court recognized that the actual-innocence gateway to federal habeas review developed in Schlup v. Delo, 513 U.S. 298 (1995) for procedurally defaulted claims extends to cases where a petitioner's claims would otherwise be barred by the expiration AEDPA's one-year statute of limitations. In Schlup, the Supreme Court explained that a viable claim of actual innocence requires a petitioner "to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." 513 U.S. at 324. "'Actual innocence' means factual innocence, not mere legal insufficiency." Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).

The Supreme Court's ruling in McQuiggin was "grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." 569 U.S. at 392-93 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). The Supreme Court explained that the "actual innocence" exception applies only to a "severely confined category" of cases, namely, those matters where the petitioner produces "new evidence" that "shows 'it is more likely than not that no reasonable juror would have convicted [the petitioner].'" Id. at 395 (quoting Schlup, 513 U.S. at 329) (bracketed text added in McQuiggin). It cautioned that "tenable actual-innocence gateway pleas are rare[,]" id. at 386, and it instructed that "[t]he gateway should open only when a petition presents 'evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Id. at 401 (quoting Schlup, 513 U.S. at 316).

In Satterfield, the petitioner, who was convicted of first-degree murder in 1985 following a jury trial, always maintained that he was innocent and in support relied upon statements eyewitnesses had given to the police that described the perpetrator as an individual who did not meet his description. 872 F.3d at 155-56. His defense attorney did not interview those eyewitnesses or present their testimony at his trial. Id. at 156-57. Beginning with his state-court post-trial motions, the petitioner consistently but unsuccessfully claimed that his attorney was ineffective for failing to investigate and present the testimony of the exculpatory eyewitnesses. Id. at 157. In his federal habeas petition, which he filed in 2002, the petitioner argued, inter alia, that he was actually innocent and that counsel was ineffective for failing to present the eyewitnesses' testimony at trial. Id. That petition was denied as time-barred under AEDPA's statute of limitations. Id. at 157-58.

Soon after the Supreme Court decided McQuiggin, the petitioner in Satterfield filed a Rule 60(b) motion with the district court within which he argued that McQuiggin was a change in decision law that served as an extraordinary circumstance upon which Rule 60(b)(6) relief may issue. Id. at 158. The district court denied his motion. The Court of Appeals vacated the district court's order and remanded for reconsideration of whether the change of law wrought by McQuiggin, combined with the other circumstances of the case, merited relief under Rule 60(b)(6). Id. at 160-65. In so doing, it agreed with the petitioner that McQuiggin effected a change in this circuit's decision law and that, if it had been in place when the petitioner was litigating his 2002 habeas petition, an appropriate showing of actual innocence may have allowed him to be exempted from AEDPA's statute of limitations. Id. at 159-60.

The Court of Appeals explained in Satterfield that "we have consistently taken the position 'that intervening changes in the law rarely justify relief from final judgments under 60(b)(6)." Id. at 161 (quoting Cox v. Horn, 757 F.3d 113, 121-22 (3d Cir. 2014)) (emphasis supplied in Cox). It further explained, however, that there is no "per se or bright-line rule that a particular change in the law is never an extraordinary circumstance," and that, instead, "we adhere to a 'case-dependent analysis' rooted in equity. This analysis manifests as a 'flexible, multifactor approach to Rule 60(b)(6) motions...that takes into account all the particulars of a movant's case,' even where the proffered ground for relief is a post-judgment change in the law." Id. (quoting Cox, 757 F.3d at 122). A district court should weigh such factors as: (1) "the general desirability that a final judgment should not be lightly disturbed;" (2) "the procedure provided by Rule 60(b) is not a substitute for an appeal;" (3) "the Rule should be liberally construed for the purpose of doing substantial justice;" (4) "whether, although the motion is made within the maximum time, if any, provided by the Rule, the motion is made within a reasonable time;" (5) "whether there is any intervening equities which make it inequitable to grant relief;" and (6) "any other factor that is relevant to the justice of the [order] under attack[.]" id. at 161 n.10 (internal citations and quotations omitted). The Court of Appeals also observed that "[t]he values encompassed by...McQuiggin cannot be divorced from the Rule 60(b)(6) inquiry[,]" id. at 162, and that "a proper demonstration of actual innocence" by a petitioner "should permit Rule 60(b)(6) relief unless the totality of equitable circumstances ultimately weigh heavily in the other direction." Id. at 163.

None of the above-cited factors weigh in favor of granting Petitioner relief under Rule 60(b)(6), and there is no circumstance in his case that merits relief under that Rule. Petitioner pleaded guilty to the first-degree murder of Mr. Galvenek; he could have raised in his 2005 federal habeas petition the claim that Mr. Zawacki induced him to plead guilty by giving him bad advice regarding the sentence he would serve, as well as all of the other ineffective assistance claims he lists in his Motion; and, he did not file his Rule 60(b) Motion within a reasonable time. Most significantly, however, this simply is not one of the rare cases where the actual innocence exception to the statute of limitations recognized by McQuiggin applies. Mr. Zawacki's March 11, 1997 letter to Petitioner's grandfather is not "new" evidence of counsel's alleged ineffectiveness, let alone evidence of Petitioner's factual innocence. Nothing in the letter could be used by Petitioner to prove that he did not commit the first-degree murder of Mr. Galvenek.

For all of these reasons, to the extent that any part of Petitioner's Motion could be construed by the Court as a true Rule 60(b) motion, the Court should dismiss it because he has not demonstrated that there are extraordinary circumstances justifying the reopening of the final judgment entered in this case on June 14, 2005.

III. CONCLUSION

Based upon the foregoing, it is respectfully recommended that the Court dismiss Petitioner's Motion. (ECF No. 14). Because jurists of reason would not find debatable the Court's disposition of the Motion for the reasons set forth herein, it is also recommended that the Court deny a certificate of appealability. 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Petitioner is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).

/s/ Patricia L. Dodge

PATRICIA L. DODGE

United States Magistrate Judge Date: January 14, 2020