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Reiss v. Pennsylvania Attorney General

March 2, 2009


The opinion of the court was delivered by: Yohn, J.


Petitioner Geoffrey S. Reiss has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a three to six year prison sentence following convictions for indecent assault, corruption of a minor, and endangering the welfare of a child. Petitioner asserts that the Commonwealth obtained this conviction as a result of prosecutorial misconduct and a "double-standard" within Pennsylvania law concerning the use of uncorroborated testimony in trials of sexual offenses. After conducting a de novo review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and upon careful consideration of petitioner's objections thereto and the parties' submissions, the court will overrule the objections, approve and adopt the Report and Recommendation, and dismiss the petition as untimely.

I. Facts and Procedural History

On March 26, 2004, following a trial before the Honorable Anthony Sarcione of the Pennsylvania Court of Common Pleas of Chester County, a jury convicted petitioner of three counts of indecent assault, three counts of corruption of a minor, and one count of endangering the welfare of a child. On May 28, 2004, Judge Sarcione sentenced petitioner to a three to six year prison sentence and a subsequent four year term of probation. Petitioner appealed his conviction claiming Judge Sarcione committed reversible error when he admitted a videotape of a police interview of a child witness pursuant to Pennsylvania's Tender Years Exception to the hearsay rule*fn1 and subject to that witness testifying and being available for cross-examination. (Appeal From the Order of J. of Sentence, Brief of Appellant 10.) Petitioner claimed that admission of the videotape violated the Confrontation Clause of the 6th Amendment because he did not have the opportunity to cross examine the child witness before the Commonwealth played the videotape in court. (Id. at 10-17.) Recognizing that Reiss had an opportunity to bring the child witness back to the stand for cross-examination after presentation of the videotape, the Pennsylvania Superior Court affirmed the convictions on April 20, 2005. Pennsylvania v. Reiss, No. 2243 EDA 2004, slip op. at 3 (Pa. Super. Ct. April 20, 2005), 876 A.2d 468 (table).

Petitioner did not file a petition for allowance of an appeal with the Pennsylvania Supreme Court.

On July 11, 2005, petitioner collaterally attacked his conviction via a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541 et seq. (2008). After Judge Sarcione granted petitioner appointment of counsel, petitioner filed an amended PCRA petition on October 14, 2005. Petitioner contended that he received ineffective assistance of counsel because at trial his attorney failed to cross examine the child witness and because after the Superior Court decision, counsel withdrew representation without giving petitioner sufficient time to perfect an appeal. (Amended Pet. for Relief Under Post Conviction Relief Act.) Following an evidentiary hearing, the court denied the PCRA petition on July 12, 2006. Petitioner appealed to the Pennsylvania Superior Court on August 14, 2006, but eighteen days later he filed a Praecipe of Discontinuance for his appeal. On September 8, 2006, the Pennsylvania Superior Court marked the matter discontinued.

Petitioner filed a second PCRA petition, pro se, on September 8, 2006. Petitioner claimed the court admitted the videotape of the child witness in violation of Pennsylvania Rules of Evidence 613, 804, and 901. The PCRA court dismissed the petition as untimely on November 1, 2006 and recommended that the Pennsylvania Superior Court likewise deny petitioner's appeal because, under the PCRA the one year statute of limitations expired and no exception applied.*fn2 Commonwealth v. Reiss, No. 5246-02, slip op. at 3-4 (Pa Ct. Com. Pl. Chester County Dec. 20, 2006). The PCRA court also noted that even if timely, the petition lacked merit because Pennsylvania Rule of Evidence ("PaRE") 613 does not apply to prior inconsistent statements admitted pursuant to PaRE 803.1, such as the witness's videotaped statements. Id. at 5. Petitioner argued to the Superior Court that his second PCRA petition was timely because he relied on newly discovered information, specifically a potential claim under PaRE 613. (Appeal from the Dismissal of Appelant's [sic] PCRA, Brief for Appellant 8-9.) Petitioner asserted that the Commonwealth improperly authenticated the videotape evidence with testimony from the interrogating officer, not the child witness, as petitioner contended PaRE 613 required. (Id.) On July 10, 2007, the Superior Court denied petitioner's appeal explaining that petitioner's newly discovered legal theory did not qualify as a newly discovered fact under the exception to the one year limitation period for PCRA claims. Pennsylvania v. Reiss, No. 3377 EDA 2006, slip op. at 5 (Pa. Super. Ct. July 10, 2007), 932 A.2d 261 (table).

Petitioner filed a motion for re-argument claiming that his trial constituted a miscarriage of justice because the Commonwealth (1) impeached the credibility of its own witness and (2) denied the child witness the opportunity to explain or deny prior inconsistent statements made in the videotape interview with the police. (Mot. for Reargument 4-7.) The Superior Court denied petitioner's motion for re-argument on September 17, 2007, and petitioner did not file a petition for allowance of an appeal with the Pennsylvania Supreme Court.

On October 29, 2007, petitioner filed the present petition for a federal writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania.*fn3 Pursuant to an order from Judge Malcolm Muir, the clerk of the court for the Middle District of Pennsylvania transferred the matter to the Eastern District of Pennsylvania, a proper court for the petition.*fn4

Then, as this court ordered, petitioner refiled his petition using this court's standard form, after which the court referred the matter to Magistrate Judge Peter Scuderi. Respondent objected to the petition as untimely, and petitioner replied with a "Statement of Timeliness." On October 29, 2008, Judge Scuderi issued a report and recommendation ("R&R") that recommended dismissal of the petition as untimely. Petitioner then filed objections to the R&R.

II. Discussion

Petitioner challenges the lawfulness of his confinement on the grounds that the Commonwealth: (1) committed prosecutorial misconduct when it failed to authenticate properly a child witness's prior inconsistent statement, resulting in a miscarriage of justice; (2) illegally impeached the credibility of its own witness; and (3) improperly applied 18 Pa. C.S.A § 3106, which, according to petitioner, in his case resulted in a legal double standard.*fn5 Petitioner raised the first claim in his second PCRA petition and raises the second and third claims for the first time in this habeas petition. As discussed below, this court finds that the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") precludes petitioner's claims, despite considerations of applicable statutory or equitable tolling.

A. Jurisdiction and Standard of Review

This court exercises jurisdiction over this habeas petition under 28 U.S.C. § 2254(a). Where a habeas petition has been referred to a magistrate judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), this court reviews de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). After conducting such a review, this court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id.

B. AEDPA's Statute of Limitations

The court may not consider the merits of this petition for a writ of habeas corpus, unless the petition is timely. Generally, under AEDPA a state prisoner seeking federal habeas relief must file his habeas petition within one year of the date on which his judgment of conviction became final. 28 U.S.C. § 2244(d)(1)(A). AEDPA also sets out several alternative start dates for the running of this one-year statutory period, the applicability of which depends on the circumstances of the case. Id. § 2244(d)(1). First, if the state creates an impediment to filing a habeas petition that is "in violation of the Constitution or laws of the United States," and if "the applicant was prevented from filing by such State action," the limitations period begins to run as soon as that impediment is removed. Id. § 2244(d)(1)(B). Second, if the petitioner relies on a constitutional right that the Supreme Court newly recognized and deemed retroactively applicable, the limitations period begins to run on the date the Supreme Court "initially recognized" the right. Id. § 2244(d)(1)(C). Finally, if the habeas petitioner bases his claim on newly discovered evidence, the limitations period begins to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2244(d)(1)(D). The limitations period begins to run from the latest of the applicable starting dates. Id. § 2244(d)(1).

Here, petitioner neither makes a claim of a state-created impediment to filing his petition, nor relies on a right newly-recognized and made retroactively applicable by the Supreme Court, nor bases his petition on newly discovered evidence. Consequently, to make his petition timely, petitioner had to file his petition within one year of "the date on which the judgment became final by 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). The Pennsylvania Superior Court affirmed petitioner's conviction on April 20, 2005, and the time for seeking direct review ended at the close of the thirty-day period petitioner had to file a petition for allowance of appeal in the Pennsylvania Supreme Court. See Pa R.A.P. 1113(a) (requiring that petitions for allowance of appeal to Pennsylvania Supreme Court be filed no later than ...

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