United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
SUSAN E. SCHWAB UNITED STATES MAGISTRATE JUDGE
The petitioner, Dontaye DeShields (“DeShields”), filed this habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his May 15, 2008, York County, Pennsylvania jury trial conviction for third-degree murder, for which he was sentenced to serve 20 to 40 years in a state correctional institution. After being served with the federal petition, the respondent filed a motion to dismiss on the grounds that the petition was untimely filed. In opposition, DeShields argues that he is entitled to equitable tolling for the conduct and actions of his attorney, Peter Vaughn, Esq. (“Vaughn”), on initial collateral review. For the reasons set forth herein, it is recommended that DeShields' habeas claims be dismissed as time-barred.
II. Background and Procedural History.
On initial collateral review, the Pennsylvania Superior Court succinctly summarized the facts giving rise to DeShield's arrest as follows:
On August 7, 2007, La'Mar Porter (“Porter”) was standing outside of his residence at 126 Edgar Street, York, Pennsylvania, along with Rodney Pinckney (“Pinckney”) and several other people, including Theodore Varcarcel (“Theo”), the victim. Porter noticed a light-colored automobile traveling down Edgar Street. Porter knew that the car belonged to DeShields. Upon seeing DeShields's automobile on Edgar Street, Porter suggested to the others that they leave that location. Porter and the others then walked to the corner of Edgar and Poplar Street, and proceeded up Poplar Street. At that point, Porter heard a gunshot, looked over his shoulder, and saw DeShields standing on the corner shooting his gun. Porter and the others ran away from the gunshots.
Subsequently, a person with Porter received a call on his cell phone from Theo. Porter and that Person went to look for Theo. However, one of the neighbors in the area came up to them, indicating that he/she had found Theo in an alley, and Theo had died.
On August 5, 2007, Detective Anthony Fetrow of the York City Police interviewed Pinckney, who gave Detective Fetrow an audiotaped statement. In that statement, Pinckney described an incident in which DeShields had robbed him of his cell phone at gunpoint. Pinckney stated that, after the robbery, he went to the corner of Poplar and Edgar, where he joined Theo, Porter, and some other people. While on the corner with the others, Pinckney saw DeShields riding in the passenger seat of a tan car as it drove down the street. One of the men told Porter to “get the gun, ” and he and Porter walked toward the stop sign to see where the tan car had gone. As those two men started to walk back toward Pincknet and the others, DeShields emerged from an alleyway near Edgar. Pinckney then heard seven or eight gunshots, but did not see who was shooting. Upon hearing the gunshots, Pinckney and others ran up Poplar Street. When the group reunited, a person from the original group came running around the corner and indicated that Theo had been shot. Subsequently, DeShields called the cell phone of Lloyd Varcarcel (“Lloyd”), Theo's brother, from Pinckney's phone and said, “Who got the last laugh?” DeShields called Lloyd's phone several times, and Lloyd told DeShields that he better “duck” when Lloyd saw him. [Subsequently, ] DeShields was charged with first- and third-degree murder relating to the death of Theo.
Commonwealth v. DeShields, No. 1044 MDA 2012, slip op. at *1-*2 (Pa. Super. Ct. June 20, 2013).
Following his arrest, DeShields was convicted for third-degree murder, on May 15, 2008, by a jury in York County, Pennsylvania. On July 28, 2008, DeShields was sentenced to serve 20 to 40 years in state prison. Thereafter, DeShields filed a timely direct appeal to the Pennsylvania Superior Court. On October 9, 2009, the Pennsylvania Superior Court affirmed DeShields' conviction. Following the Superior Court's decision, DeShields filed a petition for allowance of appeal to the Supreme Court of Pennsylvania, which was ultimately denied on March 23, 2010. DeShields did not seek further direct review in the United States Supreme Court.
Then, on April 21, 2011, DeShields filed a timely petition pursuant to Pennsylvania's Post-Conviction Relief Act (“PCRA”). Nearly three months later, on July 26, 2011, DeShields' PCRA petition was denied. Rather than filing a timely appeal of the PCRA court's decision, DeShields waited approximately 42 days, and filed his appeal nearly 14 days late. Consequently, on March 28, 2012, the Pennsylvania Superior Court quashed Deshields' appeal as untimely. That did not end the matter, however.
On April 18, 2012, DeShields filed a petition to reinstate his PCRA appellate rights, which was ultimately granted. Thereafter, DeShields filed an out-of time, PCRA appeal to the Pennsylvania Superior Court. Nonetheless, on June 20, 2013, the Pennsylvania Superior Court affirmed the PCRA court's denial of DeShields' PCRA petition. DeShields did not seek further collateral review in the Supreme Court of Pennsylvania; instead, on July 18, 2013, DeShields filed this federal habeas corpus petition attacking his York County jury trial conviction.
After filing this federal habeas petition, I conducted a preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Rather than recommending dismissal, I ordered DeShields to fill out an election form, pursuant to the Third Circuit's mandate in Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). Doc. 4. In compliance with my Order, DeShields indicated that he intends to proceed on his petition as filed. Doc. 5. Consequently, I ordered the respondent to file an answer and a memorandum of law addressing DeShields' petition. Doc. 6.
On December 3, 2013, respondent timely filed its response in the form of a motion to dismiss. Doc. 12. Therein, respondent asserts that DeShields' petition is time barred by the applicable statute of limitations and is not subject to equitable tolling. Id. Upon the issuance of a briefing order, DeShields filed a timely reply along with exhibits in the form of correspondence between him and Vaughn. Docs. 14 & 14-1. DeShields does not address the issue of statutory tolling; rather, he argues that he is entitled to equitable tolling. More precisely, DeShields argues that he is entitled to equitable tolling of the federal habeas corpus statute of limitations because Vaughn's alleged “ineffectiveness [for failing to file a timely PCRA appeal to the Pennsylvania Superior Court] surpasses a mere „garden variety claim of excusable neglect.'” Doc. 14 at 3. In so arguing, DeShields draws on the recent United States' Supreme Court decisions in Holland v. Florida and Maples v. Thomas to assert that Vaughn effectively abandoned him. See Id . at 4.
On January 12, 2014, respondent filed a timely reply brief. Doc. 15. In the reply brief, respondent concedes that Vaughn was “ineffective” when he failed to file a notice of appeal from the PCRA court's denial of relief. Id. Moreover, the respondent concedes that “[DeShields'] arguments about [Vaughn] abandoning him and not acting diligently on his behalf are well-founded…” Id. at 1-2. Nevertheless, respondent contends that Vaughn's actions and conduct only impeded DeShields' ability to file an appeal in state court and that Deshields was not prevented from filing unexhausted claims in federal court in order to stop the statute of limitations from expiring and asking this Court to enter an order staying the petition. Id. at 2-3.
The motion, having been fully briefed, is ripe for disposition on the merits. Given the arguments and evidence presented, I declined to hold a hearing on this matter. For the reasons that follow, I find that DeShields' petition is time-barred by the statute of limitations governing Section 2254 habeas ...