United States District Court, Western District of Pennsylvania
David Stewart Cercone Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
It is respectfully recommended that the Motion to Dismiss filed by the District Attorney of Allegheny County, ECF No. 21, based upon the AEDPA statute of limitations be denied without prejudice to raising the statute of limitations in the Answer and addressing Petitioner's arguments concerning tolling as well as addressing the impact of Magwood v. Patterson, 561 U.S. 320 (2010), if any, to this case.
Joseph Howell ("Petitioner") filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"). ECF No. 5. Respondents have filed a Motion to Dismiss, asserting that Petitioner failed to file his Petition within one year of his conviction becoming final (the "Motion to Dismiss"). ECF No. 21. Petitioner was ordered to respond to the Motion to Dismiss and he complied by filing his Response, contending that his Petition was timely filed and invoking, inter alia, entitlement to tolling. ECF No. 24.
The Motion to Dismiss should be denied for at least two reasons. First, because it is unclear from the present filings whether Petitioner is entitled to tolling of the AEDPA statute of limitations, the Motion to Dismiss should be denied. Secondly, because it is not clear that Petitioner's conviction became final when the Respondents contended it became final, given that Petitioner was apparently resentenced, the Motion to Dismiss should be denied. The denial of the Motion to Dismiss should be without prejudice to the Respondents raising the statute of limitations in the Answer and addressing these two identified issues.
A. Respondents Have Failed to Show that Petitioner is not Entitled to Tolling.
In his Response, Petitioner claims that he is entitled to both statutory and equitable tolling of the AEDPA statute of limitations. Petitioner contends that his PCRA petition was pending from February 15, 2006, until June 6, 2012. On February 15, 2006, he filed his PCRA Petition (the "First PCRA Petition"). The PCRA trial court denied relief and then Petitioner filed a reinstated appeal to the Pennsylvania Superior Court from the PCRA trial court's order. The Superior Court affirmed the denial of PCRA relief in most respects but did order the PCRA trial court to correct Petitioner's sentence by vacating Petitioner's robbery sentence.
Petitioner was convicted of, inter alia, second degree murder, also known as felony murder, and robbery. Petitioner was sentenced to life in prison for the second degree murder conviction. ECF No. 21-1 at 38. Petitioner was also sentenced to a consecutive period of 10 to 20 years of incarceration for the robbery conviction, which formed the predicate felony of the felony murder conviction. Under the Pennsylvania legal doctrine of "merger" the second degree murder conviction "merges" with the robbery conviction and Petitioner cannot be sentenced for both the robbery conviction and the second degree murder conviction. ECF No. 22-1 at 9. On August 28, 2007, the Superior Court issued an order affirming the denial of PCRA relief but remanded the case to the PCRA trial court for the sole purpose of the PCRA trial court vacating the robbery conviction. Petitioner filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court which was denied on March 25, 2008.
Notwithstanding the Superior Court's order remanding the case to the PCRA trial court to vacate Petitioner's sentence for the robbery conviction, the PCRA trial court failed to do so. Consequently, on May 21, 2012, Petitioner filed a Writ of Mandamus with the Superior Court, seeking an order directing the PCRA trial court to obey the Superior Court's prior order to vacate Petitioner's robbery sentence. The Superior Court granted the writ on May 24, 2012. The PCRA trial court complied with the Superior Court's issuance of the mandamus and vacated Petitioner's robbery sentence on June 6, 2012.
Meanwhile, Petitioner filed a second PCRA Petition, on April 30, 2012. On June 20, 2012, the PCRA trial court dismissed the Petition as time barred. On August 23, 2012, the Superior Court affirmed.
Petitioner contends that his First PCRA Petition was pending from the time he filed it on February 15, 2006 until June 6, 2012, the date the PCRA trial court vacated his robbery sentence. Accordingly, Petitioner contends that he is entitled to statutory tolling pursuant to 28 U.S.C. § 2244(d)(2) for this entire time period because he had a pending PCRA petition. The Respondents did not file a reply to Petitioner's Response and so we do not have the benefit of their position as to whether the First PCRA petition was pending during this entire time. Petitioner's arguments are sufficient to give us doubt as to whether the Respondents carried their burden to show that the Petition should be dismissed as time barred. Hence, the Motion to Dismiss should be denied, albeit without prejudice to the ...