United States District Court, E.D. Pennsylvania
DWAYNE S. WIGGINS, Petitioner,
WAYNE J. GAVIN, et al., Respondents.
REPORT AND RECOMMENDATION
MARILYN HEFFLEY, Magistrate Judge.
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Dwayne S. Wiggins ("Petitioner" or "Wiggins"), a prisoner incarcerated at the State Correctional Institution in Waymart, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
I. FACTS AND PROCEDURAL HISTORY
On November 1, 2004, Wiggins pled guilty to burglary, theft by deception, and two charges of criminal conspiracy in two separate cases pending in the Philadelphia County Court of Common Pleas. Commonwealth v. Wiggins, No. 2334 EDA 2010, No. 2335 EDA 2010, slip op. at 2 (Pa. Super. Ct. Aug. 21, 2012) (quoting trial court opinion, Oct. 28, 2010 - State Ct. R. D-6). In both cases, Petitioner was sentenced to 11½ to 23 months imprisonment plus one year of reporting probation, to run concurrent with one another and any other sentence, and was ordered to complete a drug treatment program and pay restitution. Id.
Wiggins was granted early parole on March 3, 2005, and was released from prison on September 6, 2005. On March 13, 2009, after multiple violations including failing to pay restitution and costs, absconding from supervision and drug treatment, testing positive for drug use, and a new conviction for possession with intent to deliver, Petitioner appeared before the court for a third violation hearing. Id . At that time, the court reviewed Wiggins' criminal history since this original appearance in 2004. The court found that Wiggins was in direct violation of his probation and sentenced him to 10 to 20 years imprisonment on the burglary and conspiracy charges, to run concurrent with one another, but consecutive to any other sentence served. Id . Petitioner was also sentenced to 3½ to 7 years incarceration on the theft by deception and criminal conspiracy charges, resulting in an aggregate sentence of 13½ to 27 years incarceration. Id. at 4. Additionally, Wiggins was ordered to complete a drug treatment program, vocational training and upon release, to seek and maintain employment and pay restitution at a rate of $25.00 per month. Id.
Wiggins' counsel filed a petition to vacate and reconsider the sentence. The trial court, however, did not address the petition and no direct appeal was taken. On June 11, 2009, Petitioner filed a pro se petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. His appointed PCRA counsel filed an amended petition on April 30, 2010.
On July 14, 2010, Wiggins' appellate rights were reinstated nunc pro tunc with the Commonwealth's consent. On August 11, 2010, Petitioner filed a notice of appeal with the Pennsylvania Superior Court as well as his statement of errors complained of on appeal pursuant to Pa. R. App. P. 1925(b). Id.
Petitioner argued on appeal that the sentencing court abused its discretion because it did not have the benefit of a pre-sentencing report, he had a history of mental illness for which he had previously been prescribed psychotropic medication, and the sentence was "grossly excessive, constituted too severe punishment, and was manifestly unreasonable in that the sentence deprived [him] of an individualized sentencing and was contrary to the fundamental norms which underlie the sentencing process." Id. at 4-5 (quoting Pet. at 8). On August 21, 2012, the Pennsylvania Superior Court affirmed the judgment of sentence. After reviewing the applicable law, the sentencing court's evaluation, and the sentencing judge's opinion, the Superior Court found that notwithstanding the absence of a pre-sentence investigation report, the record appropriately "reflects the court's reasons for the sentence and its consideration of the circumstances of the offense and [Wiggins'] character." Id. at 12.
Petitioner attempted to file an untimely petition for allowance of appeal with the Pennsylvania Supreme Court approximately five months after the Superior Court affirmed the judgment of sentence. However, because Wiggins did not explain the reasons for his failure to file a timely petition for allowance of appeal, the Supreme Court did not docket the petition and returned the petition to him. See Pa. Sup.Ct. letter dated April 29, 2013. Pet. at 20.
On December 16, 2013, Wiggins filed the instant petition for writ of habeas corpus contending that his sentence violates the Due Process Clause of the Fourteenth Amendment. Petitioner's due process claim is premised upon the same arguments he raised in state court, namely that his sentence was excessive, not individualized and the sentencing court did not have the benefit of a pre-sentencing report, which in light of his mental health history, it should have considered before sentencing him. Respondents assert that the petition is untimely, non-cognizable and procedurally defaulted.
With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress enacted a one-year limitations period for federal habeas corpus petitions. 28 U.S.C. § 2244(d). Under the AEDPA
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...