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Merritt v. Klem

January 25, 2007


The opinion of the court was delivered by: Judge Sylvia H. Rambo


Before the court is a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. Respondents assert that the petition should be dismissed for failure to timely file under the applicable statute of limitations in § 2244(d). Because the court concludes that the petition was not timely filed and that neither statutory nor equitable tolling of the statute of limitations is proper, the petition will be dismissed.

I. Background

A. Facts

On February 1, 2000, in the Dauphin County, Pennsylvania, Court of Common Pleas, Petitioner Shane Timothy Merritt pled guilty to three counts of robbery, five counts of criminal conspiracy, one count of burglary, two counts of possessing instruments of crime, and two counts of criminal attempt. He was sentenced the same day to serve twelve and one-half to thirty years in state prison. His attorney for plea and sentencing was John Fabriele, Esq., of the Dauphin County Public Defender's Office. Petitioner filed pro se an Application for Petition for Modification of Sentence nunc pro tunc. (Doc. 1, Pet. Under 28 U.S.C. § 2254 at 3 ¶ 9.) The application was denied on June 16, 2000. (Id.) On October 20, 2000, Petitioner filed pro se a notice of appeal. (Doc. 1, Mem., Commonwealth v. Merritt, No. 305 MDA 2005 (Pa. Super. Ct. Aug. 18, 2005) ["Super. Ct. Mem."] at 2.) The Superior Court of Pennsylvania denied his appeal as untimely. (Id.)

To support his appeal, Petitioner attempted to obtain the transcripts and discovery package from his guilty plea and sentencing. On June 26, 2000, he wrote to Mr. Fabriele asking for a copy of the materials and informing him of his intent to appeal the order denying his motion for modification. (Doc. 1 at 28.) Mr. Fabriele responded on September 8, 2000. He informed Petitioner that he was not sure that Petitioner would be able to appeal his case "for the sole reason that [he] entered a plea of guilty." (Id. at 29.) Mr. Fabriele indicated that he would not be able to send the requested documents because the Public Defender, as a matter of policy, does not copy and provide "the voluminous amount of material" involved in a case like Petitioner's. (Id.) Petitioner then filed, in the trial court, a Petition for an Order Mandating Clerk of Courts or Stenographer to Furnish Records and Transcripted Notes of Testimony In Forma Pauperis. (Id. at 4 ¶ 11.) He was denied permission to proceed in forma pauperis on September 29, 2000. (Super. Ct. Mem. 2.) By the same order, his request for the documents was denied because he had not paid the appropriate transcript and copying fees and because he did not file the request through counsel of record. (Id; see Doc. 1 at 30.) Petitioner filed a notice of appeal of this decision in the Superior Court, but no appeal was docketed. (Super. Ct. Mem. 2.)

On October 24, 2000, the trial court notified Petitioner that he was required to pay the filing fee for his appeal of the denial of his application for modification of sentence because his petition to proceed in forma pauperis had been denied. (Id.) Petitioner again applied to proceed in forma pauperis on October 31, 2000. On November 6, 2000, the trial court denied his request and directed him to file all motions through his counsel of record, Mr. Fabriele.*fn1 (Id.) On November 27, 2000, Petitioner sent a letter to the Disciplinary Board of the Supreme Court of Pennsylvania alleging misconduct by Mr. Fabriele for refusing to file an appeal and refusing to withdraw his name as Petitioner's counsel of record. (Doc. 1 at 33.) Paul Burgoyne, Esq., Deputy Chief of the Disciplinary Council, responded to Petitioner on November 29, 2000, advising him that his complaint had been received and someone from the Council would be contacting him soon. (Id. at 34.) There is no evidence of further action by Petitioner or the Disciplinary Council on this complaint.

More than year passed without further activity in Petitioner's case. Then on December 18, 2001, Petitioner filed a petition for mandamus in the Superior Court, requesting that the trial court be ordered to provide the transcripts and discovery package from his plea and sentencing. (Doc. 1 at 4 ¶ 11(b).) He also asserted that Mr. Fabriele had refused to provide him with information or assistance on appeal and also refused to withdraw as his counsel of record. (Super. Ct. Mem. 3.) Petitioner requested that the court order Mr. Fabriele to assist his appeal or withdraw. (Id.) The petition was denied in its entirety on January 11, 2002. (Doc. 1 at 4 ¶ 11(b).)

Another year passed without further legal action from Petitioner or his counsel of record. In an undated letter, Petitioner wrote to George F. Schultz, the Chief Public Defender of Dauphin County. (Id. at 30-31.) He asked Mr. Schultz for assistance and advice on how to proceed in his quest for an appeal of his conviction and sentencing. (Id.) He noted that Mr. Fabriele's failure to withdraw as counsel of record had prevented him from filing motions with the court. (Id.) He also acknowledged that he was unable to afford the $110.00 fee for the transcripts and discovery from the trial court. (Id.) A legal intern at the Public Defender's Office responded to Petitioner's letter on or about February 28, 2003. (Id. at 32.) He informed Petitioner that his time for direct appeal had long expired. (Id.) The intern noted that the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-9551, could have been an avenue for relief if Petitioner had filed a petition under that statute within one year of the date that the judgment against him became final. (Doc. 1 at 32.) The intern noted that Petitioner's judgment had become final more than three years before. (Id.) Even so, the intern included with his letter a copy of Petitioner's file and other pertinent information. (Id.)

Another year passed without action from Petitioner. Then on March 23, 2004, Petitioner filed for relief under the PCRA for alleged failure of trial counsel to file an appeal or challenge his sentence. (Doc. 1 at 4 ¶ 11(b); Super. Ct. Mem. 3.) He was granted permission to proceed in forma pauperis and appointed counsel on April 6, 2004. (Super. Ct. Mem. 3.) On July 30, 2004, his PCRA attorney filed a letter informing the court that the PCRA petition was without merit and a petition to withdraw from representation. (Id.) The trial court agreed. (Doc. 1, Mem. Op. & Order, Commonwealth v. Merrit [sic], No. 1654-1657 CR 1999 (Pa. Ct. Comm. Pls. Dec. 10, 2004) ["Comm. Pls. Mem."] at 2.) It found that Petitioner's PCRA petition was barred as untimely and not subject to any statutory exception allowing filing out of time. (Id.) With the opinion, the court issued notice of its intent to dismiss Petitioner's PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907(1) and (4). The court considered Petitioner's objections to the notice but dismissed his PCRA petition without an evidentiary hearing on December 30, 2004. (Doc. 1, Final Order, Commonwealth v. Merritt, No. 1654, 1657 CR 1999 (Pa. Ct. Comm. Pls. Dec. 30, 2004).)

Petitioner timely appealed the dismissal. (Super. Ct. Mem. 3.) The Superior Court affirmed the PCRA court on August 18, 2005. (Id.) The Supreme Court of Pennsylvania denied his petition for allowance of appeal on March 31, 2006. (Resp'ts' Ex. 5.)

B. Procedural History

The instant petition for writ of habeas corpus was filed on June 29, 2006. (Doc. 1.) Respondents' motion for leave to file a partial answer to the petition on statute of limitation grounds was granted on August 1, 2006. (Doc. 10.) Respondents' partial answer was filed on August 6, 2006. (Doc. 11.) Petitioner's traverse and supporting memorandum ...

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