United States District Court, E.D. Pennsylvania
January 22, 2015
SANTO FANDO WADLINGTON [68602-066]
MR. DAVID ORTIZ, et al
SANTO FANDO WADLINGTON, Petitioner, Pro se, BRADFORD, PA.
For MR. DAVID ORTIZ, WARDEN, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, THE DISTRICT ATTORNEY OF PHILADELPHIA, PENNSYLVANIA, Respondents: SUSAN ELIZABETH AFFRONTI, PHILA DISTRICT ATTYS OFFICE THREE SOUTH PENN SQUARE, PHILADELPHIA, PA.
REPORT AND RECOMMENDATION
M. FAITH ANGELL, UNITED STATES MAGISTRATE JUDGE.
Presently before this Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by prisoner challenging a state conviction. Petitioner, Santo Fando Wadlington, is currently in federal custody at Federal Correctional Institution [" FCI" ] McKean in Bradford, Pennsylvania. The conviction that Mr. Wadlington is challenging is a 1998 guilty plea to three counts of robbery and related crimes for which he was sentenced to a total of six to twenty years imprisonment. For the reasons which follow, it is recommended that Mr. Wadlington's habeas claims be denied and dismissed as time-barred.
On February 10, 1998, Santo Wadlington pled guilty, before the Honorable Jane Cutler Greenspan of the Philadelphia Court of Common Pleas, to three (3) counts of robbery as a felony of the first degree, conspiracy and possessing an instrument of crime [" PIC" ]. He was sentenced, on that date, to six to twenty years on each of the robberies; no additional sentence was imposed on the conspiracy and PIC convictions. Commonwealth's Response to Habeas Petition : Exhibit " C" (October 22, 2004 PCRA Court Opinion) [Document 12-3], at 2. Mr. Wadlington did not file a direct appeal from his sentence.
The factual basis for the entry of a guilty plea was summarized by the Commonwealth as follows:
[T]his incident occurred on August 17th, 1996, and the three complainants in this matter are Jamal Curtis, Dante Hatchett (sic), and Shawn Reynolds. These three young men were walking together to a friend's house at approximately 2:00 a.m., when they were approached by this Defendant [Mr. Wadlington], and a Co-defendant, and grabbed.
This Defendant grabbed the first victim, Jamal Curtis, and started going through his pockets. The Co-defendant brandished a 9 millimeter handgun, and ordered the three victims to lay on the ground. All three victims were put to the ground; their pockets were gone through, and the following items were taken: From Jamal Curtis, a chain and bracelet; from Shawn Reynolds, money, and from Dante Hatchett, his pager.
After they were robbed of their personal items, the Defendants ran away.
The Complainant, Dante Hatchett, knew both of the Defendants from the neighborhood. He knew one as Stretch, the one with the gun, and the other as Santo, this Defendant here.
As a result of the investigation by the police, an arrest warrant was issued for this Defendant, after identification through a photographic display. In addition, [ . . . ] I would like to add that the one victim, Jamal Curtis, was subjected to a lineup, and did positively identify this Defendant as being one of the males involved in the gunpoint robbery.
State Court Record: Guilty Plea Transcript, N.T. 2/10/98, at 6-7.
On January 2, 2004, Mr. Wadlington filed pro se petition for relief under the Pennsylvania Post Conviction Relief Act [" PCRA" ]. Mr. Wadlington alleged that his guilty plea was unlawfully induced, and that trial counsel was ineffective in inducing Petitioner to plead guilty based on a promise that Petitioner would be paroled upon serving the minimum sentence of six years, which counsel knew or should have known was " illegal and untrue." Mr. Wadlington argued that he was not time-barred from raising these issues because an " illegal sentence in not waivable." Commonwealth's Response to Habeas Petition: Exhibit " A" [Document 12-1], at 3.
Counsel was appointed; she filed a no-merit Finley letter on September 10, 2004. It was Counsel's professional opinion that Mr. Wadlington's PCRA petition was untimely and that the issues raised were without arguable merit. Id.: Exhibit " B " (September 10, 2004 letter addressed to Judge Greenspan) [Document 12-2], at 2.
Following proper notice of an intent to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 907, the Court dismissed Mr. Wadlington's PCRA petition as untimely. Id : Exhibit " C " (October 22, 2004 PCRA Court Opinion) [Document 12-3], at 2. The PCRA Court noted that even if not time barred, Mr. Wadlington's claims were meritless because: (1) his sentence was legal, and (2) during the plea colloquy Mr. Wadlington acknowledged, under oath, that no promises other than the negotiated sentence were made to him. Id.
Mr. Wadlington did not appeal the denial of PCRA relief.
On March 28, 2014, Mr. Wadlington signed and dated the instant habeas petition; it was filed in this Court on April 1, 2014. Habeas Petition [Document #1]. Petitioner asserts the following grounds for habeas relief:
Ground One: Defendant's robbery conviction is invalid because such was obtained in violation of his constitutional rights of due process under the Fourteenth Amendment. Defendant submits that the Court unlawfully waived his jurisdiction to have a " Kent" hearing before transferring his case to adult court. Attorney failed to file appeal & Court did not advise Defendant of right to have juvenile certification hearing before being tried in adult court.
Ground Two: Defendant was denied Counsel to represent him on issue of waiver of jurisdiction at appeal or post conviction proceeding in violation of Sixth Amendment. Defendant's lawyer failed to raise any argument concerning waiver of Defendant's jurisdiction from juvenile court to adult court without a proper certification hearing. Thus[, ] Defendant was denied Counsel under the Sixth Amendment.
Id., at pp. 5, 9.
In an Appendix attached to his habeas petition Mr. Wadlington cites to Martinez v. Ryan , arguing that he can " establish cause and actual prejudice for the default, which leads to a fundamental miscarriage of justice, " based on ineffective assistance of PCRA Counsel. Id., at 23. According to Petitioner:
In the instant matter, just like Clark v. Commonwealth of Pennsylvania, 892 F.2d 1142 (1989), the Defendant submits that his conviction in adult court were [sic] obtained in violation of his rights to Due Process under the Fourteenth Amendment because Defendant was a juvenile at the time of the offense and was never granted a hearing concerning his minor status. This failure denied Defendant important procedural safeguards provided to juveniles under Pennsylvania law. Thus, under the mandate of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the conviction must be vacated.
Defendant submits that he is also entitled to relief based on the prior sentence being used to enhance any future term that may be imposed. Petitioner further submits that because the Common Pleas Court did not have jurisdiction over him that such conviction is void. Habeas corpus is available for a defendant whose conviction is final
or (not final) (emphasis), if the Court that rendered judgment which they were in custody lacked jurisdiction to do so. [ . . .]
Defendant submits that because he is still under the sentence and there is a state detainer for parole violation based on such sentence, that the in custody requirement is satisfied in this matter[, ] notwithstanding that fact, defendant's exhaustion requirement is still met because at this late stage of the appeal process any remand of this matter to the state court would cause the state court to rule that this matter is procedurally barred under Pennsylvania law. Defendant contends that based upon the fact that the Court lacked jurisdiction over him, that he is serving a sentence [ ] for a conviction of a crime which, in this case, arose from a violation of the Constitution of the United States and which would require the grant of federal habeas relief.
Id., at 25-26.
On September 18, 2014, the Commonwealth filed an answer to Mr. Wadlington's habeas petition, arguing that his attempt to challenge his 1998 guilty plea was untimely filed (almost a decade too late) and must be dismissed. Commonwealth's Response [Document 12], at 1-2. In addition, the Commonwealth contends that Mr. Wadlington did have a decertification hearing on August 21, 1997. Id., at 2 n.3.
On October 3, 2014, Mr. Wadlington filed a traverse. In this pleading Petitioner argues that there is no time limit on the right to challenge an unconstitutional criminal conviction for which the trial court had no jurisdiction. Traverse [Document 15], at 1-2. Mr. Wadlington requests that:
[ . . . ] the court rule that this conviction is invalid because it was obtained without the Common Pleas Court['s] proper jurisdiction as a result of the Commonwealth's failure to give Petitioner a juvenile waiver hearing before waiving him up to adult jurisdiction without proper notice and other attendant factors mandated by the Juvenile Court's statutes and jurisdiction.
Id., at 6.
Petitioner reiterates that he " was not given any hearing at all prior to being sent up to adult court jurisdiction, and " submits that his Due Process rights were violated because the record is devoid of any findings, reports, orders, memos, or any statement addressing the propriety of the transfer, thus precluding meaningful appellate review and causing Petitioner's federal sentence to be enhanced by an unlawful and invalid conviction." Id., at 4.
A. AEDPA's Statute of Limitations.
The Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA], signed into law on April 24, 1996, significantly amended the laws governing habeas corpus petitions. One of the amended provisions, 28 U.S.C. § 2244(d), imposes a one-year statute of limitations on state prisoners who seek federal habeas relief. The statute permits the limitation period to run from four different points in time, depending on which occurs the latest. The typical start date is the date on which the petitioner's conviction becomes final by the conclusion of direct review or the expiration of the time seeking such review. See 28 U.S.C. § 2244(d)(1). However, the start date can also run from: (1) the date on which the impediment to filing an application created by state action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action; (2) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (3) " the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." See 28 U.S.C. § 2244(d)(1)(A)-(D).
The Commonwealth reads Mr. Wadlington's pleadings as arguing that an alternative start date under § 2244(d)(1) applies because he was unaware of the factual predicate of his habeas claims. Assuming arguendo that this is a proper reading of the habeas petition, I agree with the Commonwealth that Mr. Wadlington's bald statement of a lack of knowledge of his right to a juvenile waiver hearing is not sufficient to meet his burden under section (d)(3). Mr. Wadlington does not allege, and there is no evidence of record to support a finding, that Petitioner was unable, through the exercise of due diligence, to discover his right to a juvenile waiver hearing, especially when, as discussed below, Mr. Wadlington and his counsel participated in a decertification hearing on August 21, 1997. See State Court Record, " Petition for Decertification Hearing, " N.T. 8/21/97.
I see no basis to support an alternative start date and, therefore, find that Mr. Wadlington's conviction became final, for AEDPA habeas purposes, on March 12, 1998, thirty days after he was sentenced, when Petitioner's time for seeking direct review in the Pennsylvania Superior Court expired. See Pa.R.A.P. 903(c)(3). Accordingly, Petitioner's habeas statute of limitations began on March 12, 1998, and absent any tolling, expired on March 11, 1999.
B. Statutory Tolling.
The AEDPA amendments include a tolling provision for " the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." See 28 U.S.C. § 2244(d)(2).
The United States Supreme Court has held that time limits under state post-conviction law are " filing" conditions, irrespective of whether certain exceptions to the timely filing requirement exist under state law. When a state court rejects a petitioner's PCRA petition, it is not " properly filed, " and cannot be the basis for statutory tolling under the federal habeas statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1812, 1814, 161 L.Ed.2d 669 (2005)(" when a postconviction petition is untimely under state law, that [is] the end of the matter' for purposes of § 2244(d)(2).").
Mr. Wadlington's habeas statute of limitations expired (on March 11, 1999), over four and a half years before he filed his PCRA petition. Therefore, Mr. Wadlington's PCRA petition has no effect on the AEDPA statute of limitations, and is not relevant for statutory tolling purposes. The instant habeas petition, filed on March 28, 2014, was filed over fifteen years too late. Because Petitioner does not meet the requirements for statutory tolling under 28 U.S.C. § 2244(d)(2), his claims not are reviewable by this federal habeas court.
C. Equitable Tolling.
The United States Supreme Court has held that the AEDPA statute of limitations is subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). A petitioner is entitled to equitable tolling only if the petitioner shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. at 418 (2005)).
In the final analysis, federal review, on an equitable basis, of an untimely habeas petition is limited to the " rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice." Jones v. Morton, 195 F.3d at 159 (3d Cir. 1999). See Holland, 130 S.Ct. at 2564 (" the circumstances of a case must be 'extraordinary' before equitable tolling can be applied").
Mr. Wadlington cites to the Supreme Court's Martinez decision as establishing that he is entitled to habeas review of his " defaulted" claims because PCRA Counsel was ineffective in failing to argue that his constitutional rights were violated when the Commonwealth never granted him a juvenile waiver hearing.
As a threshold matter, the Martinez decision does not implicate equitable tolling. See, e.g., Pitts v. Kerestes, CA No. 12-2661, 2013 WL 4718950 at *4 (E.D. Pa. September 3, 2013)(the Martinez decision only applies to excuse procedural default and does not provide a basis for equitable tolling of the AEDPA statute of limitations) and McGrue v. Kerestes, CA No. 13-4018, 2014 WL 2218069 at *5 (E.D. Pa. May 29, 2014)(same). Therefore, Mr. Wadlington's assertion that Martinez decision requires habeas review of his untimely petition is meritless.
Additionally, the state court record establishes that the trial court did, in fact, conduct a decertification hearing on August 21, 1997, in response to a request, by Counsel, to transfer Mr. Wadlington's case to the juvenile system. See State Court Record, " Petition for Decertification Hearing, " N.T. 8/21/97 at 4. Mr. Wadlington was present at the decertification hearing. His Counsel presented testimony from Mr. Wadlington's great grandmother, Martha Bryson, and argued, based on the difficult circumstances of Mr. Wadlington's upbringing and his emotional problems, that Petitioner was amenable to juvenile treatment. Id., at 5-22.
Mr. Wadlington's allegations do not rise to the level of extraordinary circumstances as is required under the applicable standard, and the record before me does not establish a basis for equitable tolling.
Because Mr. Wadlington's habeas petition is time-barred and not properly before this Court, I make the following:
For the reasons set forth above, it is recommended that the Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, be DENIED AND DISMISSED AS UNTIMELY. It is further recommended a finding be made that there is no probable cause to issue a certificate of appealability.
Petitioner may file objections to this Report and Recommendation. See Local Civil Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.