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Perry v. Superintendent, Sci-Graterford

United States District Court, W.D. Pennsylvania

December 5, 2014

JAMAR B. PERRY, Petitioner


JOY FLOWERS CONTI, Chief District Judge.

The petition for writ of habeas corpus (the "Petition") filed in this case pursuant to 28 U.S.C. § 2254 was dismissed on February 29, 2008. More than seven years later, Jamar B. Perry ("Petitioner"), through privately retained counsel, filed what was entitled "Jamar Perry's Independent Action for Relief From Final Order or, in the Alternative, Motion for Relief From Final Order Pursuant to Rule 60 F.R.Civ.P" (the "Motion"). ECF No. 31. The Motion was referred to a United States Magistrate Judge in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72 of the Local Rules for Magistrate Judges. The District Attorney filed a response to the Motion. ECF No. 34. Petitioner filed a reply. ECF No. 35.

The magistrate judge's Report and Recommendation (the "Report"), ECF No. 36, filed on September 2, 2014, recommended that the Motion be denied. Petitioner's counsel filed objections on September 16, 2014. ECF No. 37. The court concludes that none of the objections merits rejection of the Report or extended comment. Indeed, the objections in many instances are not accurate reflections of the record.

Petitioner objects that the Report "has the facts wrong" because Petitioner "did not rely solely on findings in 2013 that Mr. Perry was incompetent to support his argument for equitable tolling." ECF No. 37 at 2. Petitioner incorrectly perceives that the magistrate judge found him to have relied solely on the fact that he was found incompetent in order to satisfy his burden of proving entitlement to equitable tolling. In the Report, the magistrate judge did not make that finding.

First, in the introductory section of the Report, it was noted that "[p]etitioner, through counsel, filed a reply, asserting, inter alia, that on May 16, 2013, Petitioner was ruled incompetent to stand trial on charges of assault by Judge Jeffrey Manning of the Court of Common Pleas of Allegheny County and arguing that such a finding merits equitable tolling for the entire period that Petitioner would need to have tolled in order for his 2006 Petition to be timely." ECF No. 36 at 2. The use of "inter alia" in the Report in the quoted sentence (which means "among other things"), clearly demonstrates that the magistrate judge in the Report did not, as Petitioner asserts, wrongly characterize that Petitioner relied solely on findings in 2013 that Petitioner was incompetent. In the Report, in addition to considering the recent finding of incompetency, there is a separate analysis of the claim of Petitioner's "life long history of mental illness[.]" Id. at 11-13. The Report contains a separate analysis of the significance of the fact that Petitioner was found incompetent in May 2013. Id. at 13. The Report set forts an analysis of both the alleged mental illness and mental incompetence in relation to equitable tolling and, in doing so, repeatedly uses the phrase "Petitioner's mental illness and/or his later declared mental incompetence" to indicate that both were considered in the Report in finding that Petitioner failed to carry his burden to show entitlement to equitable tolling. This is simply one example in the objections of Petitioner's not accurately reflecting what the Report actually concluded. Accordingly, this objection is overruled.

The next objection is Petitioner's assertion that under Brady v. Maryland, 373 U.S. 83 (1963), and Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999), Respondents have a constitutional duty to produce to this court Petitioner's "record of mental illness." ECF No. 37 at 3. The United States Court of Appeals for the Third Circuit, however, has explained that, with respect to post-conviction proceedings, "Gibson [the former convict-appellant] has pointed to no constitutional duty to disclose potentially exculpatory evidence to a convicted criminal after the criminal proceedings have concluded and we decline to conclude that such a duty exists." Gibson v. Superintendent of N.J. Dept. of Law and Public Safety-Division of State Police, 411 F.3d 427, 444 (3d Cir. 2005), overruling on other grounds recognized by, Dique v. N.J. State Police, 603 F.3d 181, 183 (3d Cir. 2010). Hence, Petitioner's assertion that there is some duty under Brady for the Respondents in this post-conviction § 2254 habeas proceeding (which is after the criminal proceedings for Petitioner concluded) to produce evidence is simply wrong.

Even if the duty of a prosecutor under Brady to disclose exculpatory material extends to all post-conviction proceedings potentially related to a prisoner's prior conviction, the duty would be to make the disclosures to the defendant and here, Petitioner could submit the evidence of his mental illness and incompetence. Petitioner's mental health records are certainly accessible to his counsel - even if not to him due to his incarcerated status and to security concerns about Petitioner possessing his mental health records in an unredacted form. Given Petitioner's knowledge of his mental illness and his or his counsel's ability to access those mental health records (even if redacted due to security concerns), ""[t]here is no Brady violation where the information is equally accessible to the defense and the prosecution, or where the defense either had the information or could have obtained it through the exercise of reasonable diligence."" Clark v. Secretary, Fla. Dept. of Corr., No. 3:10-cv-547, 2014 WL 4059131, at 29 (M.D.Fla. Aug. 14, 2014) (quoting Freeman v. State, 761 So.2d 1055, 1062 (Fla. 2000)(quoting Provenzano v. State, 616 So.2d 428, 430 (Fla. 1993))).

Lastly, with respect to Petitioner's invocation of Brady, it appears that Petitioner does not so much seek to have his mental health records disclosed to him as much as he seeks to have the obligation to pay for, and produce to this court, his apparently voluminous mental health records shifted to the Respondents under Brady in order to permit Petitioner to carry his burden to show entitlement to equitable tolling without the costs of producing those records being incurred by Petitioner. See ECF No. 37 at 3 ("The Respondents have a duty to disclose that [mental health] information to the Court[.]") (emphasis added). Whatever the extent of obligations under Brady, there is no caselaw support for imposing a burden on Respondents to produce Petitioner's mental health records to this court in order to assist Petitioner in carrying his burden to adduce evidence that he is entitled to equitable tolling. Petitioner's contention that the magistrate judge erred in not placing on the Respondents "the burden of disclosure" to show that Petitioner "is/was competent during the relevant period, " id. at 11, must be rejected.

Petitioner repeats throughout his Petition, which does not directly object to any specific finding in the Report, the assertion that "at all times relevant to the criminal proceedings [Plaintiff] was incompetent." Id. at 3. To the extent that Petitioner is claiming as a ground for relief that he was incompetent either to stand trial for the crimes of which he was convicted and which were subject to attack by the habeas petition denied by this court, or incompetent at the time of the commission of those crimes, i.e., criminally insane, such a claim was never presented in the habeas petition and apparently never raised in any of the state court proceedings. Thus, this claim is unexhausted and it is inappropriate for this court to entertain that claim.

To the extent that Petitioner seeks a retroactive competency determination by this court, [1] finding him to be incompetent in April 1999 to stand trial, he cannot come to this court in the first instance; rather, he must present such a claim to the state courts in the first instance. Petitioner certainly cannot seek such a retroactive competency determination in a Rule 60 motion because such a new claim clearly would constitute a second or successive petition for which he must have the approval of the court of appeals. To the extent Petitioner seeks to establish his incompetency at the time of his state trial so as to merit equitable tolling of the AEDPA statute of limitations for all periods thereafter, the magistrate judge correctly determined that Petitioner simply failed to adduce evidence to meet his burden.[2]

Petitioner repeatedly asserts that it should not be his burden to demonstrate his entitlement to equitable tolling and that he is entitled to a presumption of equitable tolling. ECF No. 37 at 11 ("the burden should shift to the Respondents...); id. at 17 ("Petitioner objects to page 12 [of the Report] which states that Petitioner has the burden...."). In the Report the magistrate judge correctly addressed this issue. There is no authority set forth in the objections to support Petitioner's argument that he should not bear that burden and there is nothing to show that Petitioner successfully carried that burden. In the Report it is noted that Petitioner, citing Holland v. Florida, 560 U.S. 631 (2010), asserted that there was a change in the law and, as such, Petitioner was entitled to relief based on Holland. The magistrate judge commented that Petitioner was not clear about what his arguments were under Holland, ECF No. 36 at 8, and addressed two possible arguments that Petitioner could be making. Petitioner, in his objections notes that the Report found his arguments unclear and then asserts "[l]et's clarify it." ECF No. 37 at 16. Petitioner's "clarification" does not clarify his arguments under Holland.

In Holland, the Supreme Court determined that equitable tolling could be applied in appropriate cases for the purpose of determining whether the AEDPA's statutory limitations period has run. 560 U.S. at 645. In doing so, the Court reaffirmed "that a nonjurisdictional federal statute of limitations is normally subject to a rebuttable presumption' in favor of equitable tolling.'" Id. at 645-46 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990)). Perry asserts that had Holland been the law when he filed his 2006 habeas application this court, instead of dismissing the petition, would have tolled the AEDPA's statute of limitations given Perry's mental illness and confinement in a RHU. ECF No. 31 3-5, 17-20. Holland, however, is not an intervening change in the law within the Third Circuit.

Holland did not represent an intervening change in the law with respect to Perry's motion. In holding "that § 2244(d) is subject to equitable tolling in appropriate cases, " the Supreme Court in Holland explained that it was reaching the same conclusion as the eleven courts of appeals to have already considered the question, including the Court of Appeals for the Third Circuit. Holland, 560 U.S. at 645 (citing Miller v. New Jersey Dept. of Corrections, 145 F.3d 616, 617 (3d Cir. 1998)). In Miller, the Third Circuit Court of Appeals held that "Congress intended the one year period of limitation [of § 2244(d)] to function as a statute of limitation, and thus be subject to equitable tolling." Miller, 145 F.3d at 618. As such, equitable tolling of the § 2244(d) statute of limitation has been proper within the Third Circuit since 1998, eight years prior to Perry's § 2254 habeas petition at issue. To support the "rebuttable presumption in favor of equitable tolling" on which Perry relies, the Court in Holland quoted its own 1990 decision in Irwin v. Department of Veterans Affairs. Holland, 560 U.S. at 646 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990)). This court cited both the Miller and Irwin decisions in its analysis of Perry's November 2006 habeas petition before finding that equitable tolling did not apply. See ECF No. 27 at 12-13. As such, the intervening change in constitutional law marked by Holland, which would not have altered the analysis of Perry's prior habeas petition, does not support a finding of extraordinary circumstances justifying the reopening of the final judgment dismissing it.

The next objection is Petitioner's complaint about the treatment in the Report of his claim concerning his trial counsel being constitutionally ineffective for failing to consult with petitioner about the advantages and disadvantages of filing the notice of appeal. ECF No. 31 at 15. In the Report the magistrate judge noted that this precise issue was not raised in the habeas petition and thus, the present Rule 60 motion is a second or successive § 2254 habeas petition over which this court lacks jurisdiction. Petitioner objects that the issue raised above in the Rule 60 Motion was actually the same issue previously raised in the habeas petition, namely, "1. Trial [and] Appellate counsel was ineffective for... for abandoning Petitioner without leave of Court or Notice of Withdrawal being provided or filing [a] timely notice of appeal of Petitioner[']s claims." ECF No. 2 at 2. Specifically, Petitioner asserts ...

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