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Ford v. Wenerowicz

July 7, 2010


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


Before the Court is Harold Ford's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On April 16, 2010, United States Magistrate Judge Elizabeth T. Hey filed a Report and Recommendation ("R & R"), which recommended that we deny the Petition in its entirety and dismiss as untimely a revised Petition that Petitioner subsequently filed. Petitioner has filed objections and supplemental objections to the Report and Recommendation. For the reasons that follow, we overrule Petitioner's objections, adopt the Report and Recommendation as set forth herein, and dismiss the Petition and revised Petition with prejudice.


On December 18, 2002, a jury convicted Petitioner of robbery and conspiracy. Commonwealth v. Ford, No. 3457-02, slip op. at 1 (Chester County Ct. Com. Pl. Sept. 30, 2003). The conviction arose from the June 24, 2002 robbery of two employees of the Hilton Garden Inn in Kennett Square, Pennsylvania, as the employees were cashing out their drawers. Id. at 8-9. Police officers stopped Petitioner shortly after the robbery, and evidence from the car in which he was traveling, as well as the victims' identifications of Petitioner at the scene of the arrest, were admitted at trial. Id. at 14-15. Petitioner was sentenced to twenty-five to fifty years' imprisonment on the robbery count pursuant to Pennsylvania's mandatory "three strikes" provision, 42 Pa. Cons. Stat. Ann. § 9714, and to ten to twenty years' imprisonment on the conspiracy count, to be served concurrently.

The Pennsylvania Superior Court affirmed Petitioner's conviction and sentence on July 12, 2004, Commonwealth v. Ford, No. 2087 EDA 2003, slip op. at 3-5 (Pa. Super. Ct. July 12, 2004), and the Pennsylvania Supreme Court denied his request for allowance of appeal on April 19, 2005, Commonwealth v. Ford, 872 A.2d 1198 (Pa. 2005). Petitioner timely filed a petition under the Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46, in which he argued in part that the trial court erred in applying the three-strikes provision to him. After receiving counsel, Petitioner filed an amended petition on October 20, 2006, and argued in that petition that (1) he was improperly sentenced under the three-strikes statute because he was never sentenced as a "second strike offender," (2) there was insufficient evidence to establish that he committed enumerated prior offenses, and (3) the court's consideration of a conviction that occurred more than seven years before the instant offense constituted a retroactive application of the three-strikes statute against him. The PCRA court dismissed the petition, and the Pennsylvania Superior Court affirmed in a published opinion on April 29, 2008, reasoning that § 9714 is not illegally retroactive, and that Petitioner need not have been sentenced as a second strike offender in order to be sentenced under § 9714. Commonwealth v. Ford, 947 A.2d 1251, 1253-54 (Pa. Super. Ct. 2008). Petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on October 8, 2008. Commonwealth v. Ford, 959 A.2d 319 (Pa. 2008).*fn1

On July 13, 2009, Petitioner filed the instant Petition, which raises three claims for relief: (1) the sentencing court's enhancement of Petitioner's sentence with convictions that occurred more than seven years before the instant conviction violated his Due Process rights and the Ex Post Facto Clause; (2) the court's enhancement of his sentence with convictions prior to § 9714's enactment violated his Due Process rights and the Ex Post Facto Clause; and (3) his trial and appellate counsel were ineffective for failing to argue that his sentence violated the Due Process and Ex Post Facto Clauses of the United States and Pennsylvania Constitutions. However, Petitioner had not used the correct form for his Petition and, in an Order dated September 30, 2009, we provided him with a copy of the correct form and directed him to return it within thirty days. Petitioner then filed a revised Petition on October 15, 2009,*fn2 in which he raised the following four issues: (1) his conviction was based upon evidence obtained pursuant to an unconstitutional search and seizure in violation of his Fourth Amendment rights; (2) his conviction was based upon an unlawful arrest in violation of his Fourth Amendment rights; (3) the prosecution failed to disclose evidence that was favorable to Petitioner; and (4) his counsel was ineffective in failing to file a post-sentencing motion or petition for reconsideration. On December 30, 2009, Petitioner filed a Memorandum of Law in which he addressed the issues raised in both his original and revised Petitions. After the District Attorney's office filed its Answer and Petitioner filed a response thereto, the Magistrate Judge directed the parties to address whether any of Petitioner's claims were time-barred.

The Magistrate Judge now recommends that Petitioner's original Petition was timely filed but that the revised Petition, which was filed after the statute of limitations for such petitions expired, is untimely and does not relate back to the date of the original Petition because it raises issues that are unrelated to the claims raised in the original Petition. Specifically, the Magistrate Judge recommends that the revised Petition's arguments, which allege errors relating to the validity of Petitioner's conviction, have nothing to do with the claims in the original Petition, which were based on the constitutionality of Petitioner's sentence under § 9714. The Magistrate Judge thus recommends that enforcement of the time bar is appropriate and that Petitioner is not entitled to equitable tolling. The Magistrate Judge also recommends that Petitioner failed to exhaust his claim that his sentence was impermissibly retroactive because § 9714 had not been passed at the time of his prior convictions. Addressing the remainder of Petitioner's retroactivity claim on the merits, the Magistrate Judge recommends that Petitioner's sentence was not the result of an ex post facto violation and that the Pennsylvania courts' decisions to that effect neither were contrary to, nor involved an unreasonable application of, clearly established federal law. Relatedly, the Magistrate Judge recommends that Petitioner's counsel could not have been ineffective for failing to argue the ex post facto issue. Petitioner objects to all of the Magistrate Judge's recommendations except her recommendation as to his ineffectiveness claim, upon which he does not comment.


Where ahabeas petition has been referred to a magistrate judge for a Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.... [The Court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for habeas corpus may be granted only if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States"; or if (2) the adjudication resulted in a decision that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).


A. Timeliness of the Revised Petition

Petitioner argues that, in light of our September 30, 2009 Order giving him 30 days to submit a revised habeas petition, the Magistrate Judge erred in recommending that the illegal search and seizure and illegal sentencing arguments raised in his revised Petition are time barred. AEDPA imposes a one-year limitations period for federal habeas corpus petitions. 28 U.S.C. § 2244(d). This period generally begins to run on the date the judgment becomes final in the state courts and is tolled by a properly filed application for state post-conviction relief. 28 U.S.C. §§ 2244(d)(1) and (2).

Petitioner did not raise any Fourth Amendment issues in his original Petition, which he timely filed. Instead, he raised these arguments in his revised Petition, which he filed on October 15, 2009, more than one year after October 8, 2008, the date on which the Pennsylvania Supreme Court denied his request for allowance of appeal. As the Magistrate Judge correctly concluded, the revised Petition (with its Fourth Amendment claims) does not relate back to the original Petition and is therefore untimely.

Petitioner has not asserted an equitable tolling claim; nevertheless, we note that AEDPA's one-year filing period is subject to equitable tolling only when "'principles of equity would make [the] rigid application [of a limitation period] unfair.'" Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (quoting Shendock v. Dir., Office of Workers' Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990)); see also Holland v. Florida, ___ S.Ct. ___, 2010 WL 2346549, at *9 (June 14, 2010). A petitioner seeking equitable tolling bears the burden of showing that he "exercised reasonable diligence in investigating and bringing [the] claims," Miller, 145 F.3d at 618-19 (citation and quotation marks omitted), and that "some extraordinary circumstance stood in his way." Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006) (citation and quotation marks omitted). The United States Court of Appeals for the Third Circuit has "cautioned... that courts should be sparing in their use of this doctrine." LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005) (citation omitted). Equitable tolling should only be applied "'in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice.'" Id. ...

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