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Laemmle v. Michaels

August 24, 2009

JOSEPH LAEMMLE, PETITIONER
v.
PATRICK MICHAELS, PROBATION OFFICER; THOMAS CORBETT, ATTORNEY GENERAL OF PENNSYLVANIA; STEPHEN A. ZAPPALA, JR., DISTRICT ATTORNEY OF ALLEGHENY COUNTY, RESPONDENTS



The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay

MEMORANDUM OPINION

Joseph Thomas Laemmle ("Petitioner"), proceeding with counsel, has filed the instant Section 2254 petition, seeking to challenge his convictions for, inter alia, multiple counts of Indecent Assault and/or Corruption of Minors, involving children between the ages of 8 and 13 years old. Petitioner engaged in the criminal conduct on June 11, 2000 and on June 1, 1999, more than nine years ago. Petitioner pled nolo contendere to these charges. On September 2, 2002, Petitioner received a sentence of imprisonment for 9 to 18 months and a concurrent term of probation in the aggregate of 10 years. Dkt. [1] at 2, ¶ 4. Petitioner is currently serving the sentence of probation.*fn1

Petitioner raises two claims in the current habeas petition:

Petitioner raises the following grounds (which were not pursued in any of said [state court] proceedings due to ineffective assistance of prior counsel -- occurring prior to October 18, 2005 [i.e., the date on which the Post Conviction Relief Act ("PCRA") trial court denied the PCRA petition*fn2]-- in violation of the Sixth Amendment to the United States Constitution): GROUND 1: Whether the court of Common Pleas violated Petitioner's right to Due Process -- under the Fourteenth Amendment to the United States Constitution -- by failing to inform Petitioner, prior to pleading guilty, of the Megan's Law sexual offender registration requirements and public notice provisions where, had Petitioner known of said requirements/provisions, he would not have pled guilty? GROUND 2: Whether plea and sentencing counsel was ineffective was ineffective -- in violation of the Sixth and Fourteenth Amendments to the United States Constitution -- by failing to inform Petitioner, prior to pleading guilty, of the Megan's law sexual offender registration requirements and public notice provisions where, had Petitioner known of said requirements/provisions, he would not have pled guilty?

Dkt [1] at 7 to 8, ¶ 14.

Because the petition is time barred, it should be dismissed. In the alternative, because the two issues are procedurally defaulted, the petition should be dismissed. In the alternative, because the issues are meritless, the petition should be dismissed.

I. Relevant Procedural and Factual History

Petitioner, through the same counsel who had represented Petitioner on appeal to the Superior Court during the PCRA proceedings (but not during the PCRA trial Court proceedings) filed the instant habeas petition on March 5, 2008. Respondents filed their answer, Dkt. [7], in which they raised the following defenses: (1) AEDPA's statute of limitations, (2) procedural default and (3) failure to show entitlement to relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") on the merits. Dkt. [7]. Thereafter the Respondents filed a Supplemental Answer that contained copies of many of the relevant state vourt records as well as of the state court dockets. Dkt. [9]. Petitioner did not file a traverse. All parties have consented to the plenary exercise of jurisdiction by the Magistrate Judge. Dkt. [4] & [10].

II. Discussion

A. The Petition is Time Barred

The Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of Appeal ("PAA") in the direct appeal on November 9, 2004. Commonwealth v. Laemmle, 862 A.2d 1254 (Table) (Pa. Nov. 9, 2004). Petitioner's conviction became final for AEDPA purposes 90 days thereafter, i.e., February 7, 2005. See United States Supreme Court Rule 13 (providing that a petition for certiorari must be filed no later than 90 days after entry of an order denying discretionary review by the state court of last resort); Stokes v. District Attorney of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001)(explaining that AEDPA's phrase "became final by... expiration of time for seeking [direct]... review" includes the 90 days time in which to seek certiorari); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999).

Petitioner did not file his PCRA petition until May 13, 2005, when his apparently privately retained counsel filed a PCRA petition on his behalf. Dkt. [9-5] at 1 to 6. Accordingly, from February 7, 2005 until May 12, 2005,*fn3 a total of 94 days of AEDPA's 365 day statute of limitations passed.*fn4 The PCRA petition remained "pending" only until May 23, 2007, when the Pennsylvania State Supreme Court denied it. Commonwealth v. Laemmle, 923 A.2d 1173 (Table) (Pa. May 23, 2007). Stokes v. District Attorney of Philadelphia County, 247 F.3d 539, 542 (3d Cir. 2001)(90 day period in which to file a petition for certiorari after discretionary review by the State Supreme Court in post conviction proceedings does not toll AEDPA's statute of limitations). Because the PCRA petition was pending for at least a portion of May 23, 2007, and hence, the AEDPA statute of limitations was tolled. The statute of limitations did not begin to run again until May 24, 2007. It then continued to run until March 5, 2008, the date whereon counsel filed the instant habeas petition. A total of 286 days passed between May 24, 2007 and March 5, 2008.*fn5 Adding those days to the 94 days that previously passed (between the date Petitioner's conviction became final and the date he filed his PCRA petition) provides the sum total of 380 days or 15 days beyond the AEDPA one year statute of limitations.

As noted previously, the Respondents invoked AEDPA's Statute of limitations and Petitioner did not file a traverse arguing against the application of the Statute of limitations. In the habeas petition, the sole reference to AEDPA's statute of limitations is the following: "TIMELINESS OF MOTION: This motion is timely commenced pursuant to 28 U.S.C. ยง 2254(d)(1)(A) and (2)." ...


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