The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge
Chief Magistrate Judge Amy Reynolds Hay
MEMORANDUM OPINION AND ORDER*fn1
On February 7, 2000, Douglas A. Truxal, a state prisoner, pleaded guilty to a host of charges in connection with his sexual abuse of a then under 16 year old girl who had mental disabilities. In addition, he pleaded guilty to intimidation of a witness or victim in connection with letters he wrote to the victim, threatening her to not testify against Petitioner. Petitioner's convictions resulted in an aggregate sentence of seven to fourteen years, which Petitioner is currently serving. Waiting until June 30, 2008, Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254, seeking to attack those convictions. Because Petitioner failed to file his habeas petition within one year of his conviction becoming final, his petition is time barred. In the alternative, he has procedurally defaulted his claims because he failed to file a direct appeal. In the alternative, the petition is meritless.
Factual and Procedural History
Petitioner faced three sets of charges. At Criminal Information No. 407C1999, he faced charges of statutory sexual assault, involuntary deviate sexual intercourse with a person under 16 years of age, aggravated indecent assault, indecent assault, corruption of minors and conspiracy to corrupt minors. State Court Record ("SCR"), No. 407C1999 at Dkt. No. 1. The second set of charges were filed at Criminal Information 5000C1998, charged Petitioner with stalking with intent to cause emotional distress and loitering and prowling at night near the victim's home. SCR, No. 5000C1998 at Dkt. No. 1. The third set of charges filed at Criminal Information No. 4027C1999, charged Petitioner with 3 counts of Intimidating Witness/Victim into giving false misleading testimony and three counts of Intimidating Witness/Victim into withholding information. SCR, No. 4027C1999 at Dkt. No. 1. Petitioner was arrested on at least the first set of charges on or about November 9, 1998 and confessed to the sexual abuse of the victim. Confronted by the prospect of the confession being introduced at trial, as well as the testimony of the victim and others to whom Petitioner had confided that he did in fact abuse the victim, Petitioner changed his mind and decided to plead guilty just as the jury was being selected for trial. On February 7, 2000, Petitioner was sentenced to serve 7 to 14 years of incarceration for all of the crimes he pleaded guilty to even though he faced a maximum sentence of 63 years just for Information Nos. 407C1999 and 5000C1998. SCR, Transcript of Guilty Plea at p. 25. Petitioner did not file a direct appeal.
Thereafter, Petitioner filed a pro se PCRA petition on February 9, 2001. SCR for No. 5000C1998, No. 19. That pro se PCRA petition raised the following issues:
My attorney was ineffective for his failure and/or refusal to adequately investigate the circumstances surrounding my case. My attorney was ineffective for his failure and/or refusal to gather and/or present requested tangible evidence that would have proved my innocence beyond any doubt. My attorney was ineffective for his failure and/or refusal to locate, contact and/or subpoena all of my (verbally and written) requested witnesses. My attorney was ineffective for his insistence that I plead guilty, as opposed to a costly trial, he said, and which would inconvenience and embarrass too many people as well as that I would only get found guilty anyway, regardless of the amount of evidence that I presented.
SCR, No. 5000C1998 at No. 19, p. 3 of the PCRA petition. Counsel in the person of Attorney Ceraso was appointed in March 2001. In March 2002, Attorney Ceraso moved to withdraw due to irreconcilable differences with Petitioner and on April 15, 2002, new counsel in the person of Attorney McCormick was appointed to represent Petitioner. SCR, No. 5000C1998 at No. 24. In October 2002, Attorney McCormick was granted leave to withdraw. SCR, No. 5000C1998 at No. 26. In October 2002, Attorney Avolio was then appointed to represent Petitioner in the PCRA proceedings. SCR, No. 5000C1998 at No. 27. After being granted extensions of time, Attorney Avolio filed a no-merit letter, which apparently is not in the state court record. Thereafter, on April 10, 2003, the PCRA Court, which was also the sentencing court, filed an opinion and notice of intent to dismiss (dated April 5, 2003) the pro se PCRA petition*fn2 given that no counseled amended petition was ever filed in light of the fact that Attorney Avolio wrote the no-merit letter indicating that the issues raised in the pro se PCRA petition had no merit. The PCRA court dismissed the pro se PCRA petition on May 28, 2003.
Petitioner filed a pro se appeal. Thereafter, he was ordered by the PCRA court to file a Statement of Matters complained of on appeal. SCR, No. 5000C1998 at No. 36. The PCRA court filed its response to the Petitioner's Statement of Matters Complained of On Appeal, indicating that the opinion the PCRA court filed on April 10, 2003 was an adequate response to Petitioner's Statement of Matters Complained of On Appeal. SCR, No. 5000C1998 at No. 36.
Petitioner filed an appellate brief, wherein he again raised the sole issue that his trial/guilty plea counsel was ineffective for "not present[ing] witnesses in your petitioner[']s defence, so vital that if their testimony would of [sic] been heard by the court, any reasonable minded judge or jury would of [sic] 'dismissed all charges against your petitioner, or at the very least would of [sic] found your petitioner guilty of a far lesser offence, and sentenced your petitioner to a far lesser sentence then [sic] presently imposed upon your petitioner.'" SCR, No. 5000C1998 at No. 37. On June 14, 2004, the Superior Court affirmed the PCRA Court's denial of relief. SCR, No. 5000C1998 at No. 45. Petitioner did not file a Petition for Allowance of Appeal ("PAA") to the Pennsylvania Supreme Court.
In the interim, while Petitioner's appeal to the Superior Court was pending, Petitioner filed a second pro se PCRA petition on August 23, 2004. SCR, No. 4027C1999 at No. 32. In that second PCRA petition, he raised the following claim, as summarized by this Court: Petitioner's Miranda rights were violated when the police questioned him without providing him his Miranda rights, and only after receiving incriminating statements from Petitioner, did the police give Petitioner his Miranda rights and tape record his confession. The PCRA court issued a notice of intent to dismiss the second PCRA petition because it did not meet the requirements of Commonwealth v. Lawson, 549 A.2d 107 (Pa.Super. 1988) and/or Commonwealth v. Blackwell, 558 A.2d 1077 (Pa.Super. 1989) and because the second PCRA petition was time barred. SCR, No. 4027C1999 at No. 33. Petitioner filed his response to the PCRA court's notice of intent to dismiss the second PCRA petition. SCR, No. 4027C1999 at No. 34. The PCRA court dismissed the second PCRA petition on October 20, 2004. SCR, No. 4027C1999 at No. 37.
Petitioner attempted to file an appeal. SCR, No. 4027C1999 at No. 38. However, because Petitioner neither paid the filing fee nor sought IFP status, the Superior Court's prothonotary wrote on November 23, 2004, to the Common Pleas County Clerk's office and carbon copied Petitioner, informing the County Clerk, that when Petitioner rectifies the shortcomings, to again forward the appeal to the Superior Court. SCR, No. 4027C1999 at No. 39. On December 13, 2004, Petitioner wrote a letter to the Common Pleas County Clerk's Office asking what the filing fees were for the appeal and indicating a willingness to pay up to $10.00 for the filing fee. SCR, No. 4027C1999 at No. 40. The County Clerk's Office wrote back to Petitioner on January 20, 2005, indicating that the entire filing fee would be $115.00. SCR, No. 4027C1999 at No. 41. From the state court record, nothing further appears to have transpired with regard to the appeal. The next thing occurring on the docket was that on June 11, 2008 a letter from Petitioner was filed with the County Clerk's Office requesting copies of the dockets sheets. SCR, No. 4027C1999 at No. 42.
On June 30, 2008, Petitioner executed the current pro se Section 2254 habeas petition, Dkt. 7, and a brief in support. Dkt. . In the habeas petition, he raised the following issues:
GROUND ONE: Violation of due process under the 5th and 14th amendments . . . Police conducted a[n] interrogation of Petitioner and obtained statements from petitioner in violation of his Miranda rights. [Dkt.  at 5]
GROUND TWO: Due process violation under the 14th Amendment . . . . The plea of guilty was unlawfully induced, involuntarily and unknowingly entered. [Id., at 6]
GROUND THREE: Sixth (6th) Amendment violation . . . . Guilty Plea counsel was ineffective for 1. Failing to Investigate the case[;] 2. Failing to call witnesses[;] 3. Inducing Petitioner to enter a guilty plea against his will.
After being granted an extension of time in which to file an answer, the Respondents filed their answer, wherein they raised the following defenses: (1) the petition is time barred; (2) the claims are procedurally defaulted; and (3) the claims are meritless. The Respondents also caused the original state ...