Opinion
Civil Action No. 16-77 Erie
03-17-2017
DAVID RICHARD SCHNEIDER, Petitioner, v. MICHAEL D. OVERMYER, et al., Respondents.
District Judge Barbara Rothstein
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. RECOMMENDATION
It is respectfully recommended that the petition for a writ of habeas corpus (ECF No. 3) be denied and that a certificate of appealability be denied with respect to all claims. II. REPORT
A. Relevant Background
In the petition for a writ of habeas corpus, state prisoner David Richard Schneider (the "Petitioner"), is challenging the judgments of sentences imposed upon him on April 30, 2014, in the Court of Common Pleas of Erie County (the "trial court") at Criminal Dockets 1566 of 2013 and 3724 of 2013.
At Criminal Docket 1566 of 2013, the Petitioner was charged with rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure, and corruption of minors. At Criminal Docket 3724 of 2013, he was charged with two counts of involuntary deviate sexual intercourse with a child, and two counts of indecent assault. Nicole Sloane, Esquire, represented the Petitioner in these two criminal cases.
On January 6, 2014, the Petitioner entered no contest pleas in both cases. Specifically, at Criminal Docket 1566 of 2013, he pled to involuntary deviate sexual intercourse and corruption of minors, and at Criminal Docket 3724 of 2013, he pled to involuntary deviate sexual intercourse with a child.
On April 30, 2014, the trial court sentenced him to a term of imprisonment in both cases. On that same date, the Petitioner signed the "Defendant's Acknowledgement of Post-Sentence and Appellate Rights," in which he confirmed that he was aware that he had the right to file a post-sentence motion, and that, in the event that motion was denied, he had 30 days in which to file an appeal with the Superior Court of Pennsylvania. (ECF No. 12-1 at 47).
On May 8, 2014, the Petitioner, through Attorney Sloane, filed a motion for post-sentence relief, in which he contended that the court's sentence was manifestly excessive and unreasonable. (ECF No. 12-1 at 52-53). On that same day, the trial court issued an order in which it denied that motion and directed that the Petitioner had 30 days to file an appeal with the Superior Court. (ECF No. 12-1 at 54).
In the meantime, on May 3, 2014, the Petitioner had signed a pro se motion on the standard form for collateral motions filed under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (ECF No. 12-1 at 55-60). That motion was received by the trial court on May 9, 2014 (id. at 55). In it, the Petitioner claimed that Attorney Sloane was ineffective because she forced him to enter his pleas, failed to file a post- sentence motion, and failed to file an appeal. (Id. at 57).
On May 8, 2014, the Clerk for the trial court also received a handwritten note from the Petitioner to Attorney Sloane in which he wrote that he "would like a sentence reduction put in and for you to start the appeal process[.]" (ECF No. 12-2 at 47).
On May 9, 2014, Robert J. Catalde, Esquire, the First Deputy Clerk of Records for the trial court, sent a letter to Attorney Sloane in which he forwarded the Petitioner's pro se motion and wrote:
Pursuant to Pa.R.Crim.Pr. 576(A)(4) please find enclosed herewith a copy of the Motion for Post Conviction Collateral Relief received from David Schneider, for who you appear as counsel of record. Would you kindly review same for any action you deem appropriate. If you no longer represented the defendant please contact the Clerk of Courts.(ECF No. 12-1 at 61). Catalde copied the Petitioner on this letter. (Id.)
In Pennsylvania state courts:
hybrid representation is not permitted. See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1036 (2011) (concluding that a petitioner's pro se motion for remand when that petitioner is represented by counsel is impermissible as hybrid representation).... [I]ndeed, pro se motions have no legal effect and, therefore, are legal nullities. See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (discussing a pro se post-sentence motion filed by a petitioner who had counsel). When a counseled defendant files a pro se document, it is noted on the docket and forwarded to counsel pursuant to Pa.R.Crim.P. 576(A)(4), but no further action is to be taken. Moreover, a pro se filing has no tolling effect. See Pa.R.Crim.P. 576 cmt. ("The requirement that the clerk time stamp and make docket entries of the filings in these cases only serves to provide a record of the filing, and does not trigger any deadline nor require any response.").
The Petitioner did not file a direct appeal with the Superior Court. Accordingly, his judgment of sentence became final under both state and federal law on or around June 8, 2014, which is 30 days after the trial court denied his post-sentence motion, and thus the date the time for filing a direct appeal with the Superior Court expired. See 42 Pa.C.S. § 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, 149-50 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (same).
On January 8, 2015, the Clerk for the trial court received a letter from the Petitioner in which he wrote:
Please provide me with a copy of the following for a forthcoming PCRA:
(ECF No. 12-1 at 62). Notwithstanding this request, the Petitioner did not file another PCRA motion.1. Information
2. DC-300Bs
3. Sentencing Order
On September 28, 2015, the Petitioner wrote another letter to the Clerk for the trial court, stating:
I'm requesting for the following information: Case History, Sentencing Order and any other information you can provide to me, in my quest to obtain this information, that's pertinent and necessary-for me to file a accurate and effective Petition about my sentence and a new Supreme Court ruling on sentencing. I would appreciate it, if you would kindly provide the requested information to me, and forward all requested information to the above provided address[.](ECF No. 12-2 at 50).
An entry on each of the Petitioner's criminal docket sheets, which was lodged on October 5, 2015, indicates that Catalde, the First Deputy Clerk of Records, sent to the Petitioner copies of his docket sheets, sentencing orders, pleas, informations, motions, and orders. (ECF No. 12-1 at 9, ECF No. 12-2 at 6).
The Petitioner filed his federal habeas petition with this Court, at the very earliest, on March 17, 2016, which is the date he avers he placed it in the prison mailing system. His petition is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). He claims that Attorney Sloane provided him with ineffective assistance "during my criminal process." (ECF No. 3, Petition at 5).
In their answer (ECF No. 12), the Respondents contend that the Petitioner's claim must be denied because it is untimely under AEDPA's one-year statute of limitations for federal habeas claims, which is set forth at 28 U.S.C. § 2244(d)(1). The Petitioner did not file a reply. Local Rule 2254.E.2 ("Although not required, the petitioner may file a Reply (also known as "a Traverse") within 30 days of the date the respondent files its Answer.") However, in the petition he contends that the timeliness of his claim should be calculated under § 2244(d)(1)(D), which, as discussed below, permits a state prisoner to file his federal habeas claims within one year from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." In support of this argument, he contends that "[a]fter careful review of the docketing statement provided by the [trial court] per my request," he discovered that no appeal had been taken in his case and no counsel had been appointed to represent him when he filed his PCRA motion on or around May 3, 2014. (ECF No. 3, Petition at 14).
B. Discussion
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, in relevant part:
(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;
- - -
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Section 2244(d)(1)(A) applies in most cases, including this one, with AEDPA's limitation period commencing for the Petitioner's claim on the date his judgments of sentences became final. As set forth above, the Petitioner's judgments of sentences became final on June 8, 2014. Accordingly, he had until on or around June 8, 2015, to file a timely federal habeas petition. Because he did not file his federal habeas petition until March 17, 2016, it is untimely by approximately 283 days.
AEDPA provides that "[t]he 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." 28 U.S.C. § 2244(d)(2) (emphasis added). The Petitioner has not identified any filing that would qualify. As for the pro se motion that he signed on May 3, 2014 (before Attorney Sloane had filed his post-sentence motion), the trial court did not process it further. The Petitioner had one year from the date his judgments of sentences became final (that is, until June 8, 2015) to submit a properly filed PCRA motion. 42 Pa.C.S. § 9545(b)(1).
There is no basis to run the statute of limitation for the Petitioner's claim under § 2244(d)(1)(D). The Petitioner has not identified any factual predicate for his claim that he could not have discovered earlier through the exercise of due diligence. The record submitted by the Respondents demonstrates that the Petitioner was informed that he had 30 days from the date his post-sentence motion was denied to file a direct appeal with the Superior Court. (ECF No. 12-1 at 47). It also shows that he was aware that he knew how to, and did on several occasions, contact the trial court in order to obtain records from it and learn the status of his cases. (ECF No. 12-1 at 9, 62; ECF No. 12-2 at 6, 45, 48, 50). Moreover, there is no basis to conclude that the Petitioner was not aware of the status of the pro se PCRA motion that he filed on or around May 3, 2014. The First Deputy Clerk of Records, Catalde, copied the Petitioner on the May 9, 2014, letter that he sent to Attorney Sloane regarding that motion. (ECF No. 12-1 at 61). That letter was sent in accordance with Pennsylvania Rule of Criminal Procedure 576(A)(4) and Pennsylvania's rule against hybrid representation, and instructed Attorney Sloane to review the motion and take any action on it that she deemed appropriate. The Petitioner does not contend that he was not aware that that Attorney Sloane did not pursue a direct appeal on his behalf after Catalde sent his May 9, 2014, letter. If she failed to follow his instructions to file a direct appeal, the Petitioner should have filed another PCRA motion and raised the claim that she was ineffective for failing to do so. If that motion was denied, he could have filed a timely federal habeas petition once that proceeding concluded.
A timely filed PCRA motion would have tolled AEDPA's limitations period pursuant to § 2244(d)(2). --------
Relatedly, the United States Supreme Court has held that AEDPA's statute-of-limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). 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. Id. at 649. 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 United States Court of Appeals for the Third Circuit has explained:
The diligence required for equitable tolling purposes is reasonable diligence, not maximum, extreme, or exceptional diligence. Holland, 130 S.Ct. at 2565.... A determination of whether a petitioner has exercised reasonable diligence is made under a subjective test: it must be considered in light of the particular circumstances of the case. See Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) ("Due diligence does not require the maximum feasible diligence, but it does require diligence in the circumstances.") (emphasis added) (internal quotation marks and citation omitted); see also Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011) ("To determine if a petitioner has been diligent in pursuing his petition, courts consider the petitioner's overall level of care and caution in light of his or her particular circumstances." (emphasis added)).Ross, 712 F.3d at 799. It has further instructed:
"[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.
The Petitioner has not met his burden of establishing that he: (1) pursued his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented him from filing a timely federal habeas petition. Holland, 560 U.S. at 649. He contends that he does not have legal knowledge, but it is well established that a petitioner's "lack of legal knowledge or legal training does not alone justify equitable tolling." Ross, 712 F.3d at 800 (citing Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003) (equitable tolling not justified where petitioner had one month left in limitations period in which he could have filed "at least a basic pro se habeas petition" at the time that petitioner's attorney informed him that he would not file an appeal in state court on his behalf and could no longer adequately represent him); and Doe v. Menefee, 391 F.3d 147, 177 (2d Cir. 2004) ("Given that we expect pro se petitioners to know when the limitations period expires ... such inadvertence on Doe's part cannot constitute reasonable diligence.") See also BRIAN R. MEANS, Federal Habeas Manual § 9A:92, WestlawNext (database updated May 2016) (collecting cases for the proposition that "[i]gnorance of the law and the lack of legal experience typically do not excuse an untimely filing, even for a pro se incarcerated prisoner.")
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. 28 U.S.C. § 2253 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 that standard here, jurists of reason would not find it debatable whether the Petitioner's claim should be denied because he filed his petition outside of AEDPA's statute of limitations. Accordingly, a certificate of appealability should be denied. III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that both the petition be denied and that a certificate of appealability be denied.
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, the parties are 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/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge Dated: March 17, 2017 cc: The Honorable Barbara Rothstein
United States District Judge
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super.Ct. 2016)