United States District Court, W.D. Pennsylvania
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, Magistrate Judge.
It is respectfully recommended that Respondents' motion to dismiss [ECF No. 5] be granted, that the petition for a writ of habeas corpus be dismissed, and that a certificate of appealability be denied.
A. Relevant Background
On April 16, 2002, the petitioner, John Sutton, shot and killed his estranged wife. He was charged in the Court of Common Pleas of Erie County with Criminal Homicide and Crimes Committed with Firearms. Following a jury trial in May 2003, Sutton was convicted of third-degree murder. On or around June 24, 2003, the Court of Common Pleas sentenced him to a term of 18 to 40 years' imprisonment.
In February 2004, Sutton was permitted to file a direct appeal nunc pro tunc. Robert J. Trambley, Public Defender of Crawford County, represented him. On November 3, 2004, the Superior Court of Pennsylvania affirmed his judgment of sentence. Commonwealth v. Sutton, No. 338 WDA 2004, slip op. (Pa.Super. Nov. 3, 2004) (Resp's Ex. 1, ECF No. 5 at 6-13). Sutton did not file a petition for allowance of appeal ("PAA") with the Supreme Court of Pennsylvania. Accordingly, his judgment of sentence became final on or around December 2, 2004, upon expiration of the time to file a PAA. Gonzalez v. Thaler, ___ U.S. ___ , 132 S.Ct. 641, 653-56 (2012) (a judgment of sentence becomes final at the conclusion of direct review or the expiration of time for seeking such review); Swartz v. Meyers , 204 F.3d 417, 419 (3d Cir. 2000) (same).
On or around March 23, 2006, Sutton filed a petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA.CONS.STAT. § 9541 et seq. (Resp's. Ex. 2). He raised claims of ineffective assistance and also wanted his direct appeal rights to be reinstated. He attached to his PCRA petition documents that he contended demonstrated that the Clerk of Courts of Crawford County and Public Defender Trambley misinformed him about the status of his direct appeal. The PCRA court appointed Jeffrey K. Millin, Esquire, to represent Petitioner.
In March 2007, the PCRA court issued an Opinion in which it held that Sutton's petition was untimely under the PCRA's one-year statute of limitations, 42 PA.CONS.STAT. § 9545(b). Sutton filed an appeal with the Superior Court. On May 23, 2008, the Superior Court issued a Memorandum in which it affirmed the PCRA court's decision. It held:
On appeal, Sutton raises the following issue for our review:
Whether the Appellant's PCRA Petition should be considered timely where the Appellant: (1) made numerous attempts to find out the status of his appeal to the Superior Court; (2) received letters from Crawford County Public Defender and the Crawford County Clerk of Courts misstating the status of the appeal; and (3) was never notified of the Superior Court's decision on the appeal?
Appellant's Brief, at 3.
Sutton filed the instant petition on March 23, 2006; thus, it is governed by the 1995 amendments to the PCRA, which were enacted on November 17, 1995, and became effective sixty days later. See Commonwealth v. Jones , 572 Pa. 343, 815 A.2d 598 (2002). Under those amendments to the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the exceptions set forth in 42 PA.CONS.STAT.ANN. § 9545(b)(1)(i)-(iii) apply. The "PCRA timeliness requirements are jurisdictional in nature and, accordingly, a court cannot hear untimely PCRA petitions." Commonwealth v. Flanagan , 578 Pa. 587, 621, 854 A.2d 489, 509 (2004).
The judgment of sentence entered in this matter became final at the conclusion of direct review or the expiration of the period for seeking such review. See 42 PA.CONS.STAT.ANN. § 9545(b)(3). As noted, the record does not reveal that Sutton filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. Therefore, Sutton's judgment of sentence became final thirty days after this Court dismissed his appeal, on December 2, 2004. See Pa.R.A.P., Rule 1113(a)... (petition for allowance of appeal with the Pennsylvania Supreme Court shall be filed "within 30 days of the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed").
As such, Sutton's PCRA petition is patently untimely; it was filed well-after one year of the date that his judgment of sentence became final. As previously mentioned, however, section 9545 also provides the following three exceptions that allow for review of an untimely PCRA petition: (1) petitioner's inability to raise a claim as a result of governmental interference; (2) the discovery of previously unknown facts or evidence that would have supported a claim; and (3) a newly-recognized constitutional right. [42 PA.CONS.STAT.ANN. § 9545(b)(1)(i)-(iii)]. To invoke an exception, the petitioner must plead it and satisfy the burden of proof. See Commonwealth v. Beasley , 559 Pa. 604, 608, 741 A.2d 1258, 1261-62 (1999), reargument denied. In addition, any exception must be raised within sixty days of the date the claim could have been presented. [42 PA.CONS.STAT.ANN. § 9545(b)(2)].
Instantly, Sutton invokes both the governmental interference and after-discovered evidence exceptions to the PCRA's jurisdictional time-bar. In support of his claims, Sutton argues that despite repeated efforts to contact his appointed counsel, the Crawford County Clerk of Courts, and the Prothonotary of the Pennsylvania Superior Court regarding the status of his direct appeal, he did not receive any information until almost a year after the appeal was denied, when, in November 2005, Sutton received letters that no outstanding matters on appeal were pending in his case. See Correspondence, 11/9/05, Eleanor R. Valecko, Deputy Prothonotary, The Superior Court of Pennsylvania; 11/17/05, Patricia A. Wetherbee, Clerk of Courts, Crawford County. Sutton additionally claims that he never received a copy of this Court's memorandum decision filed on November 3, 2004, in which we affirmed his judgment of sentence.
Even if we were to find that Sutton qualifies for relief under the timeliness exceptions to the PCRA, we are unable to afford relief. As previously noted, as early as November 9, 2005, Sutton had received notice from this Court's Deputy Prothonotary that no appeals or motions regarding Sutton's case were pending. Therefore, we agree with the PCRA court that as of November 2005 Sutton was on notice that his appeal had ended in some fashion. However, Sutton failed to file his PCRA petition until almost four months later, on March 23, 2006. As Sutton failed to file his PCRA petition within sixty days of the date the claim could have been presented as required by 42 PA.CONS.STAT.ANN. § 9545(b)(2), we are constrained to find that Sutton's PCRA petition is patently untimely. Accordingly, we affirm the PCRA court's order denying Sutton's PCRA petition.
Commonwealth v. Sutton, No. 796 WDA 2007, slip op. at 6-9 (Pa.Super. May 23, 2008) (footnotes omitted). On October 30, 2008, the Supreme Court of Pennsylvania denied a PAA.
On April 21, 2010, Sutton filed a second PCRA petition, which the PCRA court dismissed as untimely on May 18, 2010. On September 29, 2010, Sutton asked the PCRA court for leave to appeal nunc pro tunc. The PCRA court denied Sutton's request on October 12, 2010. Commonwealth v. Sutton, No. 818 WDA 2013, slip op. at 2 (Pa.Super. Sept. 24, 2013).
Over two years later, on February 6, 2013, Sutton filed in state court a "motion for leave to proceed in forma pauperis pursuant to existing rights." The PCRA court held that Sutton's "Motion appears to be a request by [him] to have the Court reconsider and grant him an evidentiary hearing based on our refusal to do so in an April 27, 2010 Memorandum and a final Order of May 18, 2010 dismissing his second petition for PCRA relief without a hearing." Id . at 3. Sutton filed a notice of appeal. In his Rule 1925(b) statement, "he did not indicate what he intended to argue, but rather listed the time-bar exceptions." Id.
On September 24, 2013, the Superior Court issued a Memorandum in which it affirmed the PCRA court's denial of Sutton's motion. It held:
Our review indicates that appellant's "motion for leave to proceed in forma pauperis pursuant to existing rights" is actually an attempt by appellant to file a habeas corpus petition. In Commonwealth v. Kutnyak , 781 A.2d 1259, 1261 (Pa.Super. 2001), we noted that:
the PCRA is the exclusive vehicle for obtaining post-conviction collateral relief. Commonwealth v. Bronshtein , 561 Pa. 611, 614 n. 3, 752 A.2d 868, 869-70 n. 3 (2000). This is true regardless of the manner in which the petition is titled. Commonwealth v. Hutchins , 760 A.2d 50, 52 n. 1 (Pa.Super. 2000). Indeed, the PCRA statute specifically provides for such treatment:
The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter ...