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Cerrone Furman v. Debra K. Sauers

August 29, 2012

CERRONE FURMAN,
PETITIONER,
v.
DEBRA K. SAUERS, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS.



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

MEMORANDUM

I. INTRODUCTION

This is a habeas case. Petitioner Cerrone Furman was convicted of second degree murder, robbery, possession of the instrument of a crime, and conspiracy in the Court of Common Pleas of Philadelphia County on April 27, 2005. He was sentenced to, inter alia, life imprisonment on the second degree murder count on June 17, 2005.

Petitioner filed a pro se Petition for Writ of Habeas Corpus ("Petition") under 28 U.S.C. § 2254 on July 5, 2011. This Court referred the matter to United States Magistrate Judge Arnold

C. Rapoport for a Report and Recommendation ("R & R"). Magistrate Judge Rapoport submitted his R & R on April 19, 2012, recommending that the Court dismiss the Petition as untimely. Petitioner filed Objections to the R & R on May 8, 2012, and respondents filed their Response to Petitioner's Objections on May 8, 2012. By Order dated August 6, 2012, the Court directed respondents to file a supplemental response, which respondents did on August 17, 2012. For the reasons that follow, the Court remands the Petition to Magistrate Judge Rapoport for a supplemental report and recommendation in accordance with this Memorandum.

II. BACKGROUND*fn1

On April 27, 2005, petitioner was convicted of second degree murder, robbery, possession of the instrument of a crime, and conspiracy in the Court of Common Pleas of Philadelphia County. (R & R 1.) He was sentenced on June 17, 2005, to life imprisonment on the second-degree-murder count, five to ten years' imprisonment on the conspiracy count, and two to five years' imprisonment on the possession count. (Id. at 1--2.) The robbery count merged with the murder count for sentencing purposes. (Resp. Pet. Writ Habeas Corpus ("Resp. Habeas Pet.") 6 n.6.)

Petitioner filed a timely appeal to the Pennsylvania Superior Court, which, on September 13, 2006, affirmed his conviction. (R & R 2.) The Pennsylvania Supreme Court denied allocatur on February 22, 2007, and petitioner did not seek review in the United States Supreme Court. (Id.) The time for seeking review in the United States Supreme Court expired on May 23, 2007. (Id.)

On June 15, 2007, petitioner filed a pro se petition in the Court of Common Pleas of Philadelphia County under the Pennsylvania Post-Conviction Relief Act ("PCRA"). (Id.) Petitioner then retained as counsel Royce L. Morris, Esquire, who filed an amended PCRA petition asserting trial-counsel error and newly discovered evidence. (Id.) On November 13, 2008, the PCRA court filed notice of its intent to dismiss the PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907(1). (Id.) Petitioner filed a pro se response to the notice of intent to dismiss, and the PCRA court dismissed the PCRA petition on December 12, 2008. (Id. at 2--3.)

Petitioner had thirty days to file an appeal of the PCRA court's denial of the PCRA petition; that period expired on January 11, 2009. See Commonwealth v. Robinson, 837 A.2d 1157, 1162 (Pa. 2003) (citing 42 Pa. Cons. Stat. § 5505). On January 27, 2009, petitioner's counsel filed a Motion for Leave to File Notice of Appeal Nunc Pro Tunc.*fn2 (R & R 3.) Petitioner's counsel "referenc[ed] his caseload and admitted he had been advised of the filing deadline for the notice of appeal and made various attempts to timely meet it, but claimed his attempts to file the notice electronically and via facsimile failed." (Superior Court PCRA Opinion, Resp. Pet. Habeas Corpus Ex. C, at 12.) In the motion, petitioner's counsel wrote that he "was advised of the filing deadline for the Notice of Appeal" by an associate in his office and "made various attempts to meet the filing deadline." (Motion for Leave to File Notice of Appeal Nunc Pro Tunc ¶¶ 8, 12.) On that issue, he stated that his secretary attempted to file the notice of appeal electronically and by facsimile but was unsuccessful because the Court of Common Pleas did not permit those filing methods in criminal cases. (Id.) In a letter to petitioner dated July 14, 2010, petitioner's counsel wrote that his "secretary was unsuccessful filing the appeal electronically as she was advised that she could do [so] by the Philadelphia Court of Common Pleas." (Letter from Royce L. Morris, Esquire, to Petitioner dated July 14, 2010 ("7/14/10 Letter"), Objections Ex. B, at 1.)

On February 13, 2009, the PCRA court issued a two-sentence order granting petitioner leave to file a nunc pro tunc appeal of its denial of the PCRA petition. (R & R 3.) On February 20, 2009, petitioner filed a notice of appeal. (Id.) On July 7, 2010, the Pennsylvania Superior Court reversed the PCRA court and vacated the February 13, 2009, order granting leave to file nunc pro tunc appeal, holding that the PCRA court lacked jurisdiction to permit an untimely appeal and should have denied petitioner's motion as an untimely second PCRA petition. (Id.; see also Superior Court PCRA Opinion 6--13.) In the July 7, 2010, order, the Superior Court also affirmed the December 12, 2008, order denying the PCRA petition, stating in one footnote that the PCRA court properly denied petitioner's after-discovered evidence claim and in another footnote that "even had Appellant properly preserved his remaining ineffective assistance of counsel claims . . . our review of the record revealed overwhelming evidence in support of his guilt." (Superior Court PCRA opinion 12 n.5 & 13 n.6.)

Petitioner then filed a pro se appeal of the Pennsylvania Superior Court's July 7, 2010, ruling to the Pennsylvania Supreme Court. (R & R 3.) Petitioner's appeal was dated July 29, 2010. (Notice of Appeal, Objections Ex. C.) The Pennsylvania Supreme Court denied allocatur on April 26, 2011. (R & R 3.) Petitioner filed his Petition in this Court on June 27, 2011. (Id.) The Petition was referred to United States Magistrate Judge Arnold C. Rapoport for a Report and Recommendation. Petitioner filed a pro se Memorandum of Law on January 17, 2012, and respondents filed a response on March 29, 2012.

On April 19, 2012, Magistrate Judge Rapoport filed an R &R in which he recommended that the Petition be dismissed as untimely. The R & R stated first that the Petition was untimely under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), because the Petition was not filed within approximately eleven months of January 12, 2009, the date on which the PCRA court's denial of the PCRA petition became final.*fn3 (R & R 4--8.) Although the PCRA court originally granted petitioner leave to file an untimely appeal and the one-year statute of limitations would otherwise have been tolled during that appeal, the Magistrate Judge recommended that this Court rule that the Superior Court's reversal of the PCRA court's ruling meant that remaining time under 28 U.S.C. § 2254(d)(1) began to run on January 12, 2009. (R & R 4--8.) The R & R also stated that petitioner was not entitled to equitable tolling of the statute of limitations. (Id. at 8-- 10.)

Petitioner filed pro se Objections to the R & R on May 8, 2012, asserting numerous arguments as to why his Petition was timely. Petitioner argues, inter alia, that he relied on the PCRA court's grant of leave to file a nunc pro tunc appeal in waiting to file a federal habeas petition, that "state officials were to blame for petitioner's counsel not filing a timely appeal to the itial [sic] PCRA court's dismissal on December 12, 2008" because "the courts clerk had given Appeal Counsel the wrong information to inable [sic] him to file the Appeal" (Objections 1); that his Petition was delayed "due to state officials [sic] failure to transmit the full record" to the Superior Court on appeal (id. at 3); and that "if the blame is not fully due to state officials, then appeal counsel Royce Morris is to blame," (id. at 4). Respondents filed a ...


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