United States District Court, W.D. Pennsylvania
MAUREEN P. KELLY, District Judge.
Daron Albert Cox, ("Petitioner"), represented by counsel, has filed a "Petition For Writ of Habeas Corpus" By a Person in State Custody under 28 U.S.C. § 2254 (the "Petition"). He is challenging his convictions for first degree murder and a firearms violation. Petitioner was sentenced to life in prison without the possibility of parole for the first degree murder conviction and a concurrent term of 3½ to 7 years on the firearms conviction. Petitioner now claims to have an affidavit that constitutes after discovered evidence which proves his innocence. Although not clear, Petitioner appears to make two claims in the Petition. First, he alleges that it is a constitutional violation for him, as an innocent person, to be convicted of a crime he did not commit. Second, he appears to claim that his attorney who was retained to file his second Post Conviction Relief Act ("PCRA") Petition was ineffective for failing to file the Second PCRA Petition within sixty days, as required by state law, of discovering the exculpatory facts contained in the affidavit.
Because this habeas Petition was not timely filed, it will be dismissed as time barred. In the alternative, the two claims raised by counsel simply cannot form the basis for relief in federal habeas proceedings. This is because a stand-alone actual innocence claim does not state a claim that merits relief in federal habeas proceedings. Furthermore, a claim of the ineffective assistance of counsel during PCRA proceedings fails to state a claim in federal habeas proceedings because there is no federal right to counsel in PCRA proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
Given that we write primarily for the parties who are well-acquainted with the facts of this case, we forego a lengthy recitation of the facts. It is sufficient to note that, Petitioner confessed to the crime and that confession was admitted at trial. The Commonwealth's key witness, i.e., Rashei Smith, testified that he witnessed the shooting and saw Petitioner commit the killing. Petitioner took the stand in his own defense and claimed he was with his girlfriend at the time of the shooting and not present at the shooting. ECF No. 5 at 3. The jury convicted Petitioner, apparently discrediting his testimony.
After his direct appeal was completed, Petitioner filed a first PCRA petition in which Attorney John Knorr eventually represented Petitioner. The first PCRA petition was denied and the Superior Court affirmed on September 24, 2005. Petitioner did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.
In late August 2006, Petitioner learned from DeWayne Jackson, that he, Jackson, allegedly saw another person, i.e., Roland Cephas, shoot the victim Brian Roberts and that Rashei Smith, who was the Commonwealth's key eyewitness, was not present at the time of the shooting of Roberts. Jackson also stated that Rashei Smith attempted to obtain information about the shooting of Roberts with the intention of using such information in order to secure preferential treatment in connection with criminal charges that Rashei Smith was facing at the time.
Petitioner apparently contacted Attorney Knorr with this information. On October 13, 2006, DeWayne Jackson executed an affidavit, averring therein the foregoing statements. Attorney Knorr filed the Second PCRA Petition on November 3, 2006 in which he raised the claim that Petitioner suffered a miscarriage of justice in light of the newly discovered evidence of Petitioner's actual innocence.
The Court of Common Pleas of Allegheny County ("the PCRA trial court"), in a Notice of Intention to Dismiss dated April 24, 2007, found at least one potential deficiency, asserting that the Second PCRA Petition filed by Attorney Knorr was filed outside the sixty (60) day time frame set forth in 42 Pa. C.S.A. Section 9545(b)(2) because the existence of the witness (Dewayne Jackson) was uncovered in August of 2006 and Attorney Knorr did not file the PCRA petition until November 3, 2006. On May 25, 2007, Petitioner's present counsel who represents him in this Petition, entered his appearance in the PCRA trial court and filed a Response to the Notice of Intention to Dismiss and a Motion for Leave to file an Amended Second PCRA Petition. The PCRA trial court granted the Motion on July 3, 2007, and an amended petition was filed on July 16, 2007.
The PCRA trial court then held an evidentiary hearing on September 10, 2007 at which time Petitioner, DeWayne Jackson and Petitioner's prior counsel John Knorr, among others, testified.
On February 12, 2008, the PCRA trial court issued its Memorandum Opinion and Order, finding that the second PCRA Petition was untimely filed because it was not filed within sixty days of August 31, 2006, as required by 42 Pa.C.S.A. § 9545(b)(2). In the alternative, the PCRA trial court held that the testimony of DeWayne Jackson and his affidavit which was in conformity with his testimony at the PCRA hearing was essentially dubious and thus, Petitioner failed to establish a miscarriage of justice under the PCRA statute as would be sufficient to merit relief.
Petitioner appealed to the Pennsylvania Superior Court. On August 6, 2010, the Superior Court affirmed the decision of the PCRA trial court. Petitioner filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Petition for Allowance of Appeal was denied on March 9, 2011.
Petitioner's counsel did not file the present Petition in this Court until March 7, 2012, nearly one full year after the Pennsylvania Supreme Court denied the Petition for Allowance of Appeal. ECF No. 1. After being granted extensions of time in which to file their Answer, Respondents filed their Answer, pointing out that the Petition was untimely filed and meritless, and also attached copies of much of the state court record as exhibits. ECF Nos. 5 to 8. The Respondents also caused the original state court record to be delivered to this Court.
All of the parties have consented to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 4 and 9.
II. APPLICABLE LEGAL PRINCIPLES
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) ("AEDPA") which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254 was enacted on April 24, 1996. Because Petitioner's habeas Petition was filed after its effective date, AEDPA is applicable to this case. Werts v. Vaughn , 228 F.3d 178, 195 (3d Cir. 2000).
Where the state courts have reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, AEDPA provides the applicable deferential standards by which the federal habeas court is to review the ...