United States District Court, Eastern District of Pennsylvania
MEMORANDUM ON PETITION FOR WRIT OF HABEAS CORPUS
BAYLSON, District Judge
Presently before the Court is a Report and Recommendation issued by Magistrate Judge Carol Sandra Moore Wells, denying Petitioner Steven Scott’s Petition for Writ of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. Upon independent and thorough review, and for the reasons stated below, the Court will affirm the Report and Recommendation and dismiss the Petition.
I. Factual and Procedural Background
Petitioner challenges his incarceration under a state court conviction for robbery, first degree murder, possession of an instrument of crime, and conspiracy under 28 U.S.C. § 2254. Scott was convicted in 1993, and sentenced life and a consecutive sentence of fifty-two and a half to one-hundred years in prison. Scott was appointed new counsel for his appeal, and challenged the effective assistance of trial counsel. On November 22, 1995 the Pennsylvania Superior Court affirmed the judgment and sentence. Petitioner did not appeal, and his judgment became final, on December 22, 1995.
Petitioner filed a petition under the Pennsylvania Post-Conviction Relief Act, 42 Pa. C.S. §§ 9541-9546, on December 16, 1996. He was appointed counsel, but counsel filed a “no-merit letter” and withdrew. The PCRA court dismissed Scott’s petition in December 1997, and the Superior Court affirmed the dismissal on October 22, 1998. Scott filed a second PRCA petition in January 1999, which was dismissed as untimely and was not appealed. Scott filed a third PRCA petition in 2001, which was dismissed as untimely an was not appealed. Scott filed a fourth PRCA petition in 2003, which was also dismissed as untimely, and the Pennsylvania Superior Court affirmed the dismissal on January 5, 2005. Scott filed a fifth petition in 2006, which was also dismissed as untimely, and the Pennsylvania Superior Court affirmed the dismissal on May 27, 2008.
Petitioner filed this federal habeas petition on March 4, 2013 asserting ineffective assistance of trial counsel for failing to call witnesses and failing to conduct DNA testing on a beer bottle and paper bag found at the crime scene. Petitioner asserts appellate counsel was ineffective in failing to raise on appeal whether the trial court erred in denying Petitioner’s motion to suppress eyewitness identification, . Petitioner asserts the trial court improperly ordered destruction of a beer bottle and brown paper bag that were found at the scene of the crime. Finally, Scott contends the untimeliness of his petition should be excused because it presents new evidence of actual innocence under Martinez v. Ryan, 132 S.Ct. 1309 (2012).
Petitioner Steven Scott filed a Motion to Consider the Merits of Habeas Corpus Claims Pursuant to McQuiggin v. Perkins on January 16, 2014 (ECF No. 13) after he filed his Objection (ECF No. 11) to the May 30, 2013 Report and Recommendation of Magistrate Judge Carol Sandra Moore Wells (ECF No. 10). Respondent filed a Response to the motion on January 17, 2014. (ECF No. 14).
II. The Report an d Recommendation
Magistrate Carol Sandra Moore Wells recommended the petition be denied as untimely, because Scott’s conviction was final on December 23, 1995, and the current petition was not filed until sixteen years after the AEDPA deadline. Magistrate Judge Wells further found although statutory tolling extended the deadline until March 31, 1999, this federal habeas petition was filed nearly fourteen years past the deadline. Finally, Judge Wells found equitable tolling did not apply to this petition because Petitioner did not diligently pursue his rights, and because Petitioner did not show some extraordinary circumstances prevented him from asserting his rights.
III. Petitioner’s Objections to the Report and Recommendation
Scott contends the Magistrate Judge erred in finding Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012) did not create a newly-recognized constitutional right. Petitioner argues his petition should not be time-barred under Martinez, equitable tolling, and the McQuiggin v. Perkins actual innocence exception.
“Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012). In Martinez the state law did not allow defendants to raise ineffective assistance of counsel on direct appeal, so if the petitioner was denied effective assistance of counsel in his state collateral proceeding, he ...