United States District Court, E.D. Pennsylvania
November 24, 2014
JAMES NATAL, Petitioner,
COMMONWEALTH OF PA, et al., Respondents
JAMES NATAL, Petitioner, Pro se, MARIENVILLE, PA.
For DANIEL P. BURNS, SUPERINTENDENT, SCI-FOREST PRISON, PHILADELPHIA DISTRICT ATTORNEY, THE ATTORNEY GENERAL OF THE STATE OF: PENNSYLVANIA, Respondents: SUSAN ELIZABETH AFFRONTI, PHILA DISTRICT ATTYS OFFICE, PHILADELPHIA, PA.
REPORT AND RECOMMENDATION
LYNNE A. SITARSKI, UNITED STATES MAGISTRATE JUDGE.
Presently before the Court is a pro se petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, by James Natal, an individual currently incarcerated in State Correctional Institution Forest, in Marienville, Pennsylvania. This matter has been referred to me for preparation of a Report and Recommendation. For the following reasons, I respectfully recommend that the petition for habeas corpus be DISMISSED as time-barred under the federal habeas statute of limitations and because it raises claims that are not cognizable on federal habeas review.
I. FACTS AND PROCEDURAL HISTORY
On March 24, 2010, Petitioner was tried before a jury in the Philadelphia Court of Common Pleas on numerous counts of robbery, theft, and firearms related offenses in connection with a crime spree in Philadelphia in late November 2007. During the trial, Petitioner entered into non-negotiated guilty pleas on several charges, but proceeded to a jury verdict on several others. Specifically, Petitioner pled guilty to six counts each of theft by unlawful taking, criminal conspiracy and criminal mischief, and to one count of simple assault. A jury subsequently convicted him of two counts of robbery, one count of robbery of a motor vehicle, two counts of theft by unlawful taking, six counts of criminal conspiracy, one count of arson, two counts of carrying a firearm without a license, two counts of carrying a firearm on a public street in Philadelphia, and one count of simple assault. Petitioner was sentenced to an aggregate term of 21 to 42 years' imprisonment on these convictions. On August 24, 2012, the Superior Court affirmed the judgments of sentence. (Resp. Exh. A, ECF No. 16-1). Petitioner did not file a petition for allowance of appeal to the Pennsylvania Supreme Court, or a petition for collateral review pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. § § 9541 et seq . within the applicable deadlines.
On August 15, 2013,  Petitioner filed in this Court a document titled " Motion to Stay Federal Habeas Corpus Proceeding to Permit the Petitioner to Exhaust State Court [Remedies]." (ECF No. 1). In this filing, Petitioner explained that he recently sought permission from the Pennsylvania Supreme Court to file a petition for allowance of appeal nunc pro tunc based on his appellate counsel's alleged failure to seek discretionary review in that court, and asked this Court to " stay" the running of his federal habeas limitations period while he pursued his state-court remedies. (Mot. 1-2, 4, 6-7, ECF No. 1). Petitioner explained that, although he explicitly asked his appellate counsel to file an appeal in the state Supreme Court, counsel ignored his requests and abandoned him. (Mot. 5, ECF No. 1). Petitioner argued that a stay was warranted in these circumstances while he attempted to exhaust his claims in state court, and stated that " a protective petition is being requested and made for this Court to grant permission to stay and abey the Habeas Corpus Petition." (Mot. 7, ECF No. 1) (punctuation omitted). However, Petitioner did not attach a habeas petition to his motion, and the motion itself did not explicitly identify any of the federal habeas claims that Petitioner intended to pursue.
The " Motion to Stay" was assigned to the Honorable Robert F. Kelly, who directed Petitioner to complete this Court's standard form for filing a petition pursuant to 28 U.S.C. § 2254 and return it to the Clerk within thirty days. (Order, 11/18/13, ECF No. 2). On December 16, 2013,  Petitioner submitted a petition for habeas corpus relief on the appropriate form, setting forth the following claims (recited verbatim):
(1) Trial Court erred by granting the Commonwealth's pretrial motion to Consolidate where evidence did not demonstrate a Common Plan, Scheme or Design;
(2) The trial court erred, denying motion to suppress Petitioner's statement where it was not voluntarily given to the said detective(s) and where Petitioner was in fact intoxicated;
(3) Trial court erred by prohibiting cross-examination of complaining witness use of a prior fictitious arrest name;
(4) Trial court abused its discretion in sentencing by failing to consider Petitioner's rehabilitation needs.
(Revised Pet. 8-13, ECF No. 3) (punctuation omitted). Petitioner indicated that his appellate counsel had presented these claims on direct appeal to the Pennsylvania Superior Court, but that counsel had " abandoned" him thereafter and refused to file an allocatur petition with the state Supreme Court. (Revised Pet. 9, 10, 12, 14, ECF No. 3). In response, the Commonwealth contends that Petitioner's claims are time-barred because the federal habeas statute of limitations expired before Petitioner raised them in his December 16, 2013 petition. (Resp., ECF No. 16).
II. LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") grants to persons in state or federal custody the right to file a petition in a federal court seeking the issuance of a writ of habeas corpus. See 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may be granted only if: (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, " clearly established Federal law, as determined by the Supreme Court of the United States; " or (2) the adjudication resulted in a decision that was " based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
A. Ineffectiveness Claim Raised in Petitioner's Stay Motion
The AEDPA imposes a one-year limitations period for a state prisoner to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). As is applicable here, AEDPA's limitations period runs from " the date on which the judgment became final by . . . the expiration of the time for seeking [direct] review." Id. § 2244(d)(1)(A). The AEDPA limitations period is subject to both statutory and equitable tolling. Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999).
In this case, Petitioner's convictions became final on September 23, 2012, the deadline for filing a petition for allowance of appeal in the state Supreme Court seeking review of the Superior Court's August 24, 2012 order. See 42 Pa. Cons. Stat. Ann. § 9545(b)(3); Pa. R. App. P. 903. The AEDPA limitations period began to run at that time, and expired one year later, on September 23, 2013.
As noted above, on August 15, 2013, several weeks before the limitations period expired, Petitioner filed a motion asking this Court to " stay" the AEDPA limitations period while he pursued his nunc pro tunc request for allowance of appeal in the state Supreme Court. If this filing could be construed as an application for habeas corpus relief, such application would be timely.
Giving this pro se filing the liberal construction it is owed, see Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010), it arguably raises a claim that Petitioner's Sixth Amendment right to effective assistance of counsel was violated when his appellate counsel failed to petition the state Supreme Court for allocatur. Although Petitioner does not explicitly identify this claim as a basis for federal habeas relief, he repeatedly refers to counsel's alleged abandonment throughout the motion, and even cites the Sixth Amendment. The Court thus recommends that Petitioner's motion be liberally construed as timely raising this ineffectiveness claim. See, e.g., Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001) (explaining that a motion for an extension of time to file a § 2255 motion may be construed as a habeas petition if it contains allegations sufficient to support a claim for habeas relief).
That said, a claim that appellate counsel was ineffective for failing to petition the state Supreme Court for allocatur is not cognizable on federal habeas review. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (holding that where there is no right to counsel, there is consequently no right to effective assistance of counsel); Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (stating that there is no right to counsel in state discretionary appeals); Davenport v. Brooks, 06-5070, 2914 WL 1413943, at *4 (E.D. Pa. Apr. 14, 2014) (finding non-cognizable claim that appellate counsel was ineffective for failing to consult with him before electing not to petition the Pennsylvania Supreme Court for allocatur because there is no constitutional right to counsel on discretionary appeal).
Therefore, even assuming that this ineffectiveness claim was timely raised, it cannot provide Plaintiff with any federal habeas relief, because it is a non-cognizable claim.
B. Claims Raised in December 16, 2013 Habeas Petition
1. Whether the Claims Relate Back
The claims that Petitioner raised in the December 16, 2013 petition -- after the one-year statute of limitations had expired -- are time-barred. The Supreme Court has made clear that a habeas petition can be amended after the expiration of the AEDPA limitations period only if the amendment is limited to clarification of the claims raised in the original petition; any new claims presented in the amendment are untimely and unreviewable. Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (" An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth."); see also id . at 662 (" If claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance.").
To the extent that Petitioner's December 16, 2013 petition alleged that appellate counsel was ineffective for failing to present four trial-court-error claims to the state Supreme Court,  these claims do not relate back to Petitioner's initial filing -- which did not mention any of these underlying trial-court errors -- because they are not " tied to a common core of operative facts." Mayle, 545 U.S. at 664; see United States v. Duffus, 174 F.3d 333, 336-37 (3d Cir. 1999) (finding that " while [petitioner] asserted in his initial motion that his attorney had been ineffective, the particular claim with respect to failing to move to suppress evidence was completely new"); Stanley v. Fisher, No. 11-3040, 2012 WL 4341820, at *10 (E.D. Pa. Feb. 27, 2010) (finding that petitioner's new claim that trial counsel was ineffective for failing to raise a violation of the fair cross section requirement did not relate back to his other ineffectiveness claims because the claims arose from entirely separate factual circumstances and created distinct claims for relief); Pagan v. Brooks, No. 07-4780, 2008 WL 483853, at *6 (E.D. Pa. Nov. 5, 2008) (finding that claim in amended petition alleging that trial counsel was ineffective for failing to interview a witness did not relate back to claim in initial petition alleging that trial counsel was ineffective for failing to interview a different witness because it was a distinct ground for relief requiring a separate factual analysis).
The Court recognizes that Petitioner attempted to preserve his right to raise these claims by filing the purported stay motion before his one-year period had expired. However, this Court cannot allow this motion to serve as a " place holder." The intent of Congress in establishing the statute of limitations imposed by the AEDPA would be frustrated if new claims were permitted after the expiration of the limitations period. Duffus, 174 F.3d at 337. Accordingly, the ineffective-assistance-of-appellate-counsel claims raised in Petitioner's December 16, 2013 petition are time-barred unless Petitioner can demonstrate that he is entitled to equitable tolling of the limitations period.
2. Equitable Tolling
A prisoner " is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quotation and citation omitted). The Third Circuit has recognized four narrow instances in which equitable tolling may be applied: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) if the plaintiff has timely asserted his rights mistakenly in another forum; or (4) if the plaintiff received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that he had done everything required of him. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
Petitioner does not recognize that his petition is untimely, and thus does not address the applicability of the equitable tolling doctrine to his case. However, I have reviewed the record and find nothing to suggest that equitable relief is appropriate here. Insofar as Petitioner might contend that his attorney's ineffectiveness provides a basis for equitable tolling, the record does not contain any suggestion of attorney malfeasance amounting to an " extraordinary circumstance." To the contrary, after the Superior Court issued its decision in August 2012, counsel advised Petitioner that he would no longer be representing him, and that if Petitioner wished to file either a PCRA petition or a federal habeas petition, he must do so by August 23, 2013. (Lttr, 6/19/12, ECF No. 1-1). Thus, contrary to Petitioner's contention, counsel did not commit any errors, much less one that would warrant equitable relief. See LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005) (explaining that although an attorney's affirmative misrepresentation might rise to the level of an " extraordinary circumstance, " attorney error, miscalculation, inadequate research, or other mistakes have not been found to be " extraordinary"). Furthermore, Petitioner cannot demonstrate that he pursued his rights diligently. Counsel's decision not to seek further review in state court did not obstruct Petitioner's ability to file a federal habeas petition; even if Petitioner wished to obtain further review of his claims in state court, he was nonetheless required to file a " protective" habeas petition here before the statute of limitations expired. See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (explaining that a petitioner may file a protective habeas petition and obtain a stay of his habeas proceedings while he pursues his unexhausted claims in state court); Crews v. Horn, 360 F.3d 146, 151-52 (3d Cir. 2004) (same).
For these reasons, even if Petitioner had argued that he was entitled to equitable relief under this theory, such relief would not be warranted.
3. Ineffective-assistance-of-counsel Claim is not Cognizable
Finally, even if the claims that Petitioner presented in his December 16, 2013 petition were timely, they are not cognizable on federal habeas review. In the form petition, Petitioner set forth four claims concerning trial court errors in the application of state law. (Pet. 8-15, ECF No. 3). Petitioner also alleged that his direct appeal counsel had refused to file an allocatur petition presenting these claims to the state Supreme Court. (Id.).
First, as discussed above, there is no constitutional right to counsel in state discretionary appeals. See Ross, 417 U.S. at 610. Thus, to the extent that Petitioner's December 16, 2013 petition can be construed as alleging that appellate counsel was ineffective for failing to raise trial-court-error claims to the state Supreme Court on discretionary appeal, such claim is not cognizable on federal habeas review. Moreover, to the extent that Petitioner intended to set forth in his petition freestanding claims of trial court error on state-law questions, these claims are likewise not cognizable. See Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) (" Federal courts reviewing habeas claims cannot reexamine state court determinations on state-law questions.") (quotation marks and citation omitted).
For the foregoing reasons, I respectfully recommend that the petition for writ of habeas corpus be DISMISSED without an evidentiary hearing and with no certificate of appealability issued.
Therefore, I respectfully make the following:
AND NOW, this 24th day of November 2014, it is respectfully recommended that the petition for writ of habeas corpus be DISMISSED without an evidentiary hearing. It is further recommended that no certificate of appealability shall issue.
Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.