DONALD W. QUEER, Petitioner,
RANDALL E. BRITTON, Superintendent, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and THE DISTRICT ATTORNEY OF THE COUNTY OF WESTMORELAND, Respondents.
LISA PUPO LENIHAN, Magistrate Judge.
Donald W. Queer ("Petitioner"), a state prisoner incarcerated at the State Correctional Institution at Houtzdale, has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court finds that Petitioner is entitled to relief on his claim that his counsel was ineffective for failing to file an appeal. The Court will grant the relief sought.
I.Factual and Procedural History
The following is a summary of the lengthy, and somewhat convoluted, history of Petitioner's state court criminal and post-conviction proceedings.
Petitioner was charged with arson and other related offenses in four separate criminal informations in Westmoreland County at case numbers 292 C 2000 ("Piper fire"), 293 C, 2000 ("Auto Haven fire"), 294 C 2000 ("Loveridge fire"), and 519 C 2000 ("Conn fire"). All four cases were consolidated for trial along with the five cases of his co-defendant, David Ferguson. Judge Blahovec presided over a jury trial that began on May 29, 2001 and concluded on June 7, 2001. At trial Petitioner was represented by Attorney Christopher Feliciani. The jury acquitted Petitioner of the charges stemming from the Conn. fire but found him guilty on all counts at the other three cases. Sentencing occurred on September 12, 2001, and Petitioner was sentenced to an aggregate term of imprisonment of 29 years and 4 months to 58 years and 8 months.
At sentencing Petitioner made an oral motion for the appointment of new counsel for purposes of appeal. Before granting this motion, the trial court ordered Attorney Feliciani to file post-sentence motions to toll the appeal statute. Post-sentence motions were filed on September 14, 2001.
On October 17, 2001, Attorney Ron E. Valasek was appointed to represent Petitioner for post-sentence proceedings. The court instructed Attorney Valasak to file supplemental post-sentence motions within twenty days. When that time expired, and the motions had not yet been filed, the court entered an order reminding counsel of the 120-day time limit to file the motions imposed by Pennsylvania Rule of Criminal Procedure 720(a), and again ordered counsel to submit to the court supplemental motions and an accompanying brief. The 120-day time limit expired without Attorney Valasek submitting supplemental motions. The original post-sentence motions filed by Attorney Feliciani were denied by the court on January 14, 2002.
Prior to the denial of the post-sentence motions, Petitioner wrote to Attorney Valasek asking that he file supplemental post-sentence motions and an appeal on his behalf. This letter was dated November 7, 2001. After receiving no response from Attorney Valasek, and presumably not having received notice that his post-sentence motions had already been denied, Petitioner wrote to Judge Blahovec on January 23, 2002, complaining that Attorney Valasek never contacted him despite several letters he had written to him and that his family's attempts to contact him by phone were unsuccessful. In the letter, Petitioner stated that he wanted to file supplemental post-sentence motions to challenge several issues. Judge Blahovec forwarded the letter to Attorney Valasek asking that he contact his client.
No direct appeal was ever filed so Petitioner's judgment of sentence became final on February 13, 2002, thirty days after his post-sentence motions were denied.
Petitioner avers that, on or about May 20, 2002, he wrote to the Westmoreland County Clerk of Court requesting to know the status of his case. In response he received a copy of his docket sheet and noticed the court's docket entry entered on January 14, 2002, which read as follows:
Petitioner allegedly asked several people working at the prison law library what the entry meant and he was told that it meant his appeal had been denied. Because of this, Petitioner allegedly believed that Attorney Valasek had filed the appeal and that it had been denied.
On July 1, 2002, Petitioner filed his first Motion for Post-Conviction Relief pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"). The PCRA court again appointed Attorney Valasek to represent Petitioner and instructed counsel to file an amended PCRA petition. Counsel filed an amended PCRA petition on September 6, 2002, raising four claims of ineffective assistance of trial counsel, one claim of trial court error, and a claim that Petitioner's sentence was excessive.
An evidentiary hearing was scheduled for November 18, 2002, but Attorney Valasek presented no testimony or evidence in support of Petitioner's claims. Instead, he simply requested time to submit a brief in support of the petition, which was granted. By opinion and order dated February 24, 2003, the court denied the PCRA petition. The Pennsylvania Superior Court affirmed the denial of PCRA relief on April 7, 2004, and Petitioner did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.
Petitioner filed a second PCRA petition on August 10, 2004. After reviewing the petition, the PCRA court appointed Attorney Emily Smarto to represent Petitioner for those proceedings. A hearing on the petition was held on February 1, 2005.
At this hearing, Attorney Valasek was called to testify as to his representation of Petitioner in his first PCRA proceedings. He did not testify as to his representation of Petitioner on direct appeal. Also called to testify at the hearing was Petitioner's trial counsel, Attorney Feliciani. At the hearing, the Commonwealth argued that Petitioner's second PCRA petition was untimely, and, despite Judge Blahovec's statement that it was just "easier" to rule on the merits of the petition rather than find it untimely, he did in fact dismiss it as untimely on March 22, 2005. It was also at this hearing that Petitioner allegedly first learned that Attorney Valasek had never filed a direct appeal as he was led to believe by the January 14, 2002 entry on the court's docket. According to Petitioner, Judge Blahovec informed Attorney Smarto that this issue would have to be raised in a third PCRA petition.
Instead of appealing the PCRA court's order, Petitioner filed a third PCRA petition on April 11, 2005, requesting that his appeal rights be reinstated because Attorney Valasek was ineffective for failing to file an appeal when Petitioner requested that he do so. An evidentiary hearing was held on August 3, 2005.
The hearing lasted not more than five minutes and it concluded with the court granting the requested PCRA relief and reinstating Petitioner's direct appeal rights nunc pro tunc . Petitioner was given thirty days to file his direct appeal and Attorney Smarto filed a timely appeal on his behalf.
On October 3, 2005, the trial court issued its Rule 1925(a) Opinion finding that Petitioner's direct appeal lacked merit. However, on May 17, 2006, the Pennsylvania Superior Court quashed Petitioner's direct appeal and vacated the PCRA court's order that had reinstated Petitioner's direct appeal rights. The Superior Court found that Petitioner's third PCRA petition was untimely filed. Thus, the PCRA court was without jurisdiction to consider it and could not grant the requested relief. The Pennsylvania Supreme Court denied Petitioner's petition for allowance of an appeal on September 29, 2006.
Petitioner filed a fourth PCRA petition on November 8, 2006. This time, counsel was not appointed. The PCRA court issued its notice of intent to dismiss the petition on November 29, 2006, stating that the petition was untimely and that Petitioner did not meet any of the enumerated exceptions to the PCRA timeliness requirement found at 42 Pa.C.S.A. §§ 9545(b)(1) and (2).[5 ...