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Kareem George v. Marirosa Lamas

October 2, 2012

KAREEM GEORGE,
PETITIONER :
v.
MARIROSA LAMAS, ET AL., RESPONDENTS



The opinion of the court was delivered by: (Judge Rambo)

MEMORANDUM

Petitioner Kareem George ("George"), who is presently incarcerated at the State Correctional Institution at Rockview ("SCI-Rockview") in Bellfonte, Pennsylvania, initiated this action by filing a pro se petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. (Doc. 1.) In the petition, George challenges his August 27, 2007 guilty plea and judgment of sentence in the Court of Common Pleas of Dauphin County, Pennsylvania ("trial court" or "Dauphin County court"). For the reasons that follow, the petition will be denied.

I. Background

On August 27, 2007, George pleaded guilty to third-degree murder; three counts of recklessly endangering another person; possession of a firearm prohibited; carrying a firearm without a license; and flight to avoid apprehension, in the Dauphin County court. (See Doc. 15-2, Ex. A, Docket sheet, Commonwealth v. George, CP-22-CR-0002215-2005 (2005).) On that same date, the Dauphin County court sentenced him to an aggregate term of imprisonment of fifteen to thirty years, and imposed related fines and costs. George was represented by counsel at the guilty plea and sentencing. (See id.)

George did not file a direct appeal to the Superior Court of Pennsylvania. On August 21, 2008, George filed a pro se petition for post conviction collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"). See 42 Pa. Cons. Stat. Ann. §§ 9541-9546. (See Doc. 15-2, Ex. A.) In his PCRA petition, George raised the following issues:

9. Petitioner asserts three (3) instances of ineffective assistance of counsel which are as follows:

A. Counsel's advice, and lack thereof, to Petitioner was not within the range of competence demanded of attorney's [sic] in criminal cases;

B. Counsel failed to conduct any investigation into the case's facts and circumstances before advising Petitioner to plead guilty; and

C. Counsel failed to pursue reasonable alternatives to protect his client's interests such as raising the right to a speedy trial, which affected Petitioner's ability to pay an attorney and contributed to the stress of fighting a capital case.

10. Petitioner has obtained exculpatory evidence that has become available subsequent to his plea which would have changed the decision to enter the plea had it been known and/or introduced. This evidence consists of affidavits by Jessica Rivera and Dale Dennis. (Doc. 15-2 at 52, Ex. C, PCRA Petition.)

On August 29, 2008, the trial court, now sitting as the PCRA court, appointed William Shreve, Esquire, as counsel for George and granted George leave to file a supplemental PCRA petition. (See Doc. 15-2, Ex. A.) After being granted an extension of time, on January 20, 2009, counsel filed a motion for an evidentiary hearing pursuant to the PCRA, requesting a hearing based on George's assertions set forth in his pro se PCRA petition and a review of the guilty plea transcript. (Id.; Doc. 15-2 at 83.) On April 14, 2009, the PCRA court issued a order noticing its intention to dismiss the PCRA petition within twenty days of the date of the order. (See Doc. 15-2, Ex. D, Mem. Op. & Order.) On April 30, 2009, George filed pro se objections to the PCRA court's order. (Doc. 15-2, Ex. A.) On October 22, 2009, the PCRA court dismissed the PCRA petition without a hearing. (Id.)

On November 6, 2009, George filed a counseled notice of appeal. (Id.) On November 12, 2009, George's counsel filed in the PCRA court a motion to withdraw as counsel and for an extension of time for George to file a pro se notice of appeal. (Id.) On December 11, 2009, the PCRA court conducted a hearing to determine whether George knowingly and voluntarily waived his right to counsel and to appear pro se pursuant to Commonwealth v. Grazier, 713 A.2d 81 (1998) ("Grazier hearing"). (Id.) Following the Grazier hearing, on December 18, 2009, the PCRA court granted George leave to proceed pro se and granted counsel's request to withdraw. (Id.) The court also provided George with thirty days to file a pro se notice of appeal. (Id.)

On January 8, 2010, George filed a pro se notice of appeal nunc pro tunc. (Id.) In the appeal, George raised the following issues:

1. Is the PCRA court's decision to dismiss Appellant's four (4) claims for relief raised in his PCRA petition supported by the record and free of legal error?

2. Is the post-conviction record sufficiently developed to permit meaningful appellate review?

3. Did the PCRA court's failure to address any of Appellant's four (4) claims for relief in its memorandum opinion and order, giving notice of intent to dismiss pursuant to Pa.R.Crim.P. 907(1), deny Appellant due process of law?

4. Did the PCRA court erroneously apply the standard for withdrawal of a guilty plea under 42 Pa. C.S. § 9543(a)(2)(iii), instead of the standard for proving ineffective assistance of counsel under 42 Pa. C.S. § 9543(a)(2)(ii)?

5. Did the PCRA court erroneously require the Appellant to prove his claims for relief in his PCRA petition?

6. Did court-appointed PCRA counsel provide ineffective assistance of counsel?

7. Did the PCRA court deny Appellant his rule-based right to effective assistance of counsel through the PCRA proceedings? (Doc. 15-3 at 18-19, Ex. F, App. Br.)

On October 18, 2010, the Superior Court affirmed the PCRA court decision. (See Doc. 15-2, Ex. A.) On November 12, 2010, George filed a petition for allowance of appeal, raising the following issues:

1. Whether the decision of the Superior Court of Pennsylvania is in conflict with the decisions of the United States Supreme Court in Strickland v. Washington, 104 S. Ct. 2052 (1985) and Hill v. Lockhart, 106 S. Ct. 366 (1985)?

2. Whether this court needs to re-examine the standard for evaluating claims of after-discovered evidence in light of its conflict with the rationale in Napue v. Illinois, 79 S. Ct. 1173 (1959); Commonwealth v. Sattazahn, 952 A.2d 640, 657 (Pa. 2008); and Commonwealth v. Myrick, 360 A.2d 598, 602 (Pa. 1976)?

3. Whether the decision of the Superior Court of Pennsylvania is in conflict with the decision of this court in Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998) and another decision of the Superior Court, i.e. Commonwealth v. Powell, 787 A.2d 1017, 1019 (Pa. Super. 2001)? (Doc. 15-4 at 25, Ex. H, App. Br.) The Pennsylvania Supreme Court denied allocatur on June 7, 2011. (Doc. 15-4 at 63, Ex. I, Order.)

On August 9, 2011, George filed the instant habeas petition. (Doc. 1.) After being granted an extension of time, (see Doc. 7), George filed a supporting memorandum of law on October 14, 2011, (Doc. 8). Respondents responded to the petition on December 16, 2011. (Doc. 15.) George filed his reply brief on February 2, 2012. (Doc. 18.) This matter is now ripe for disposition.

II. Discussion

In his petition, George raises the following claims as grounds for relief: (1) George's rights under the 14th Amendment's due process clause were violated by the PCRA court's failure to apply the laws governing PCRA petitions; (2) trial counsel provided ineffective assistance of counsel in connection with George's guilty plea; and (3) George's guilty plea was not knowingly and voluntarily entered and, therefore, he should be permitted to withdraw it. In their response to George's petition, Respondents contend the following: (1) George's habeas petition was not timely filed; (2) claims one and three, listed above, should be dismissed because they were not presented in state court; and (3) trial counsel was not ineffective in connection with George's guilty plea.

For purposes of discussion, the court will first address the timeliness of George's habeas petition, followed by a discussion of the claims presented in the petition.

A. Timeliness of the Habeas Petition

As stated above, Respondents first argue that the instant § 2254 petition is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Upon review, the court finds that the petition has not been timely filed, but will apply equitable tolling in order to consider the claims presented therein.

The court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d)(1). A state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).

In the instant case, after entering the guilty pleas, George was sentenced to an aggregate term of imprisonment of 15 to 30 years by the Dauphin County court on August 27, 2007. George did not file a direct appeal. Therefore, his conviction became final on September 27, 2007.*fn1 See 42 Pa. Cons. Stat. Ann. § 9545(b)(3) ("judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review"). The one-year period for the statute of limitations commenced running as of that date, and expired on September 27, 2008. Hence, the federal petition, which was filed on August 9, 2011, appears to be untimely. However, the court's analysis does not end there. Consideration of both statutory and equitable tolling must be undertaken.

1. Statutory Tolling

Section 2244(d)(2) tolls the statute of limitations with respect to the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). On August 21, 2008,*fn2 George filed a PCRA petition in the Dauphin County court. While a properly-filed PCRA petition will toll the running of AEDPA's statute of limitations, an improperly-filed PCRA petition does not have the same effect. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) ("'properly filed' state-court [post-conviction] petitions must be 'pending' in order to toll the limitations period. Thus, a state court petition like Tinker's that is filed following the expiration of the federal [AEDPA] limitations period cannot toll that period because there is no period remaining to be tolled.") (some internal quotations omitted), reh'g denied, 273 F.3d 1123 (11th Cir. 2001).

The federal limitations period in the instant case expired on September 27, 2008. George filed a PCRA petition in the Dauphin County court on August 19, 2008. As a result, the statute of limitations became tolled at the point. Prior to his filing date, the statute began running on September 27, 2007, the date his conviction became final. It was not tolled until August 19, 2008, when George timely filed his PCRA petition. By this time, approximately 327 days already had elapsed. On June 7, 2011, the Pennsylvania Supreme Court denied George's petition for allowance of appeal, at which time the statutory tolling ceased to apply and the § 2244(d)(1) filing deadline resumed. Thus, the filing deadline for the instant habeas petition expired on or about July 15, 2011 (June 7, 2011 plus the 38 days remaining on the statute prior to tolling by filing of PCRA petition). Based on the foregoing, since the instant petition was not filed until August 9, 2011, it is clear that George failed to file his action within the requisite one-year statutory deadline, and the petition may be dismissed as untimely.

In his reply, George asserts that he placed the instant petition in the prison mailbox on July 25, 2011, and thus, according to the "prison mailbox rule," see supra note 2, at 9, his petition should be deemed filed on July 25, 2011.*fn3 (Doc. 18 at 2.) Even using the date of July 25, 2011 as a filing date, George's ...


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