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Hernandez v. Folino

March 22, 2010

RAFAEL HERNANDEZ, PETITIONER,
v.
LOUIS FOLINO, ET AL., RESPONDENTS.



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

MEMORANDUM

Petitioner, Rafael Hernandez, proceeding pro se, has filed a motion pursuant to Federal Rule of Civil Procedure 60(b), seeking relief from the court's July 27, 2006, order in civil action no. 04-5398 dismissing as untimely his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner argues that the court's conclusion that his habeas corpus petition was untimely is erroneous under the Supreme Court's later decision in Jimenez v. Quarterman, __ U.S. __, 129 S.Ct. 681 (2009). (Pet'r's Rule 60(b) Mot. ¶ 7.) In that case, the Supreme Court held that "where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet 'final'" for purposes of triggering the one-year limitations period to file a federal habeas corpus action until the conclusion of the out-of-time direct appeal process. Jimenez, 129 S.Ct. at 686-87.

Even assuming that the change in the law reflected in Jimenez could constitute a basis for relief under Rule 60(b)-a question the court need not decide-the Jimenez decision is inapplicable to petitioner's case, and the court therefore will deny petitioner's Rule 60(b) motion.

I. Procedural History*fn1

On May 4, 1999, petitioner pleaded guilty to first-degree murder in the Berks County Court of Common Pleas in exchange for a sentence of life imprisonment, which was imposed that day. On May 17, 1999, petitioner, by counsel, filed an untimely motion to withdraw his guilty plea, and his counsel also sought permission to withdraw. On May 20, 1999, the court denied the motion to withdraw the guilty plea, granted counsel's request to withdraw, and appointed new counsel, Gail Chiodo, Esq., to represent petitioner.

Chiodo did not file a direct appeal from the denial of the post-sentence motion or a petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq. Nor did petitioner. Rather, on March 27, 2000, Chiodo filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), and Commonwealth v. Turner, 544 A.2d 927 (1988), which set forth the procedures under which counsel may be permitted to withdraw from representation during PCRA proceedings.*fn2 The Court of Common Pleas granted Chiodo's request to withdraw that same day. Commonwealth v. Hernandez, No. 3319-98, Order (Berks County Ct. Com. Pl. Mar. 27, 2000). Although neither petitioner nor Chiodo had filed a PCRA petition, the Court of Common Pleas thereafter issued a notice of intent to dismiss petitioner's "P.C.R.A. Petition filed in this matter without a hearing and without the appointment of new counsel." Hernandez, No. 3319-98, Notice (Berks County Ct. Com. Pl. Mar. 29, 2000). Petitioner submitted a pro se response to the court's notice on May 28, 2000, but the court issued an order "denying" petitioner's "PCRA petition" on June 2, 2000, Hernandez, No. 98-3319, Order (Berks County Ct. Com. Pl. June 2, 2000).

On June 23, 2000, petitioner filed a timely pro se appeal from the dismissal of the nonexistent PCRA petition to the Pennsylvania Superior Court, and new counsel-Michael Dautrich, Esq.-was appointed. Dautrich thereafter filed a "Concise Statement of Matters Complained of on Appeal," asserting that both guilty plea and post-sentence counsel had been ineffective in numerous respects, including by failing to file a direct appeal. On August 23, 2000, the Court of Common Pleas filed a memorandum opinion in which the court noted that the record was silent as to whether petitioner had waived his right to a direct appeal and requested that the Superior Court remand the case for an evidentiary hearing "on the issue of whether the [petitioner] has waived this right, and, if he has not, for a determination of whether or not the [petitioner] is entitled to appeal nunc pro tunc." See Hernandez, No. 3319-98, Mem. Op. at 5 (Berks County Ct. Com. Pl. Aug. 23, 2000).*fn3

Petitioner thereafter filed a motion for leave to proceed pro se, and by order dated September 18, 2000, the Superior Court remanded the case for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),*fn4 retaining jurisdiction. Commonwealth v. Hernandez, No. 1294 MDA 2000, Order (Pa. Super. Ct. Sept. 18, 2000). Petitioner subsequently filed a motion to strike and/or withdraw his motion to proceed pro se, which the Superior Court granted, directing the Court of Common Pleas to forward the record in the case. Hernandez, No. 1294 MDA 2000, Order (Pa. Super. Ct. Oct. 6, 2000).

On October 17, 2000, the Court of Common Pleas wrote to the Superior Court, reiterating its view that petitioner was entitled to a hearing on the factual issue of whether he had waived his appellate rights and requesting permission to retain the record so that the court could hold such a hearing. (Oct. 17, 2000, letter from Hon. Forrest G. Schaeffer to David A. Szewczak, Esq., Prothonotary, Superior Court of Pennsylvania, at 1-2.) The Court of Common Pleas also noted that although, following receipt of Chiodo's "no merit" letter, the court had given petitioner notice of its intent to dismiss his PCRA petition without a hearing, and later had "purported to deny [the petition]," in fact, "neither [petitioner] nor anyone on his behalf ever filed a P.C.R.A. petition." (Id. at 2.)

The record does not reflect any response from the Superior Court to the Common Pleas Court's letter. Nevertheless, the Court of Common Pleas held a hearing on January 2, 2001, at which the parties stipulated that petitioner had asked Chiodo to file a direct appeal and that she had failed to perfect his direct appeal rights. See Hernandez, No. 3319-98, Mem. Op. at 5 (Berks County Ct. Com. Pl. Jan. 9, 2001). A week later, on January 9, 2001, Dautrich filed an "Amended Motion for Post Conviction Collateral Relief Nunc Pro Tunc" in the Court of Common Pleas, seeking reinstatement of petitioner's direct appeal rights. That same day, the court filed a further memorandum opinion with respect to its June 2, 2000, order denying petitioner's "PCRA petition." Id. at 1. The court concluded, in light of the parties' stipulation, that petitioner "did not validly waive his right to a direct appeal and . . . would be entitled to appeal nunc pro tunc." Id. at 5. Noting that Dautrich had filed an amended PCRA petition, the court requested "that the Superior Court review said motion and permit the [petitioner] to file a direct appeal, nunc pro tunc, the relief requested, or dismiss the instant appeal and remand the matter to this court to take the appropriate action." Id. at 5-6.

The Superior Court issued an opinion in the case on December 21, 2001. Because the Court of Common Pleas had treated the proceedings as if a PCRA petition had been filed, the Superior Court considered petitioner's appeal from the June 2, 2000, order denying his "PCRA petition" on the merits.*fn5 Commonwealth v. Hernandez, No. 1294 MDA 2000, Mem. at 3 (Pa. Super. Ct. Dec. 21, 2001). The court rejected petitioner's claim that guilty plea counsel had been ineffective in failing to object to a defective guilty plea colloquy, finding that the record evidence did not support petitioner's claim that his guilty plea was not knowingly, voluntarily, or intelligently given. Id. at 4-13. The court also rejected petitioner's claim that Chiodo had been ineffective for failing to raise "all meritorious issues on appeal," concluding that petitioner had waived the defenses of provocation, self-defense, and involuntary intoxication he contended should have been raised by entering into a valid guilty plea. Id. at 13. In light of its disposition of these issues on their merits, the court determined it need not address petitioner's remaining issues "challenging prior counsel's ineffectiveness for failing to file a direct appeal." Id. at 13 n.4. The Pennsylvania Supreme Court denied allocatur on July 24, 2002. Commonwealth v. Hernandez, No. 90 MAL 2002, Order (Pa. July 24, 2002).

On October 24, 2002, petitioner filed a "second" pro se PCRA petition, which the PCRA court denied on February 4, 2003. Hernandez, No. 98-3319, Order (Berks County Ct. Com. Pl. Feb. 4, 2003).*fn6 Petitioner appealed, and on June 10, 2004, the Superior Court affirmed the PCRA court's decision, finding the petition to be time-barred under 42 Pa. Cons. Stat. Ann. § 9545(b)(1), which provides, with certain exceptions not applicable here, that "[a]ny [PCRA] petition . . . , including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final." Commonwealth v. Hernandez, 783 MDA 2003, Mem. at 4-5 (Pa. Super. Ct. June 10, 2004). In so holding, the Superior Court determined that petitioner's judgment of sentence became final on June 4, 1999, when his right to pursue a direct appeal expired.*fn7 Id. at 4. Accordingly, the court concluded, petitioner had only until June 4, 2000, to file a timely PCRA petition, regardless of whether the petition was construed as his first or second PCRA petition. Id. at 4-5. Petitioner filed a petition for allowance of appeal to the Pennsylvania Supreme Court on July 9, 2004, and the Supreme Court denied allocatur on July 12, 2005. Commonwealth v. Hernandez, No. 771 MAL 2004 (Pa. July 12, 2005).

On November 19, 2004, while his petition for allowance of appeal was still pending in the Pennsylvania Supreme Court, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. I referred the matter to a magistrate judge for a report and recommendation and thereafter placed the action in suspense pending the Pennsylvania Supreme Court's disposition of the petition for allowance of appeal. After that court denied allocatur, I issued a memorandum and order on July 27, 2006, adopting the magistrate judge's report and recommendation that petitioner's habeas corpus petition be dismissed as barred by the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d).*fn8 Hernandez v. Folino, No. 04-5398, 2006 WL 2136084 ...


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