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Hayes v. Wenerowicz

United States District Court, W.D. Pennsylvania

April 13, 2015

DAVON R. HAYES, Petitioner,
v.
MICHAEL WENEROWICZ SUPERINTENDENT FOR THE STATE CORRECTIONAL INSTITUTION AT GRATERFORD And; KATHLEEN G. KANE ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA, Respondents.

OPINION

Maureen P. Kelly, Chief United States Magistrate Judge

Davon Renee Hayes (“Petitioner”), represented by privately retained counsel, has filed this Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the “Petition”), seeking to attack his state court convictions for second degree murder and robbery for which Petitioner was sentenced to life in prison without the possibility of parole. ECF No. 1.

I. BACKGROUND

During the nonjury trial of Petitioner in the Court of Common Pleas of Allegheny County from February 28, 2005 to March 2, 2005, detectives testified that Petitioner confessed his involvement in the robbery of a local store which resulted in the shooting of the store owner. Detective Logan was the officer who interrogated Petitioner and Detective Logan testified that Petitioner admitted to agreeing with two other males to rob the store and that Petitioner would act as a lookout. During the nonjury trial, Petitioner took the stand in his own defense and asserted that, during his interrogation, he initially denied any involvement but because of Detective Logan’s haranguing of Petitioner, Petitioner told Detective Logan “[w]hat he [i.e., Detective Logan] wanted to hear.” State Court Record (“SCR”), Notes of Testimony (“N.T.”) at 144, line 18. Petitioner also testified that what he told Detective Logan about Petitioner’s involvement, i.e., about him going to the store and agreeing to rob the store, was all a lie to Detective Logan and just part of telling Detective Logan what he wanted to hear. Id. at 144, lines 23-25. The Honorable John A. Zottola, who presided over the nonjury trial, disbelieved Petitioner when he stated that he had lied to Detective Logan about his involvement. Judge Zottola found Petitioner’s confession to Detective Logan credible and found Petitioner guilty of second degree murder and robbery.

Petitioner now brings this Petition, which, he concedes through his counsel, violates the one year statute of limitations. However, Petitioner contends that he has shown “actual innocence” so as to meet a judicially created exception to the AEDPA statute of limitations.

Because Petitioner failed to carry his burden to show actual innocence of the crimes, the Petition will be dismissed. Because jurists of reason would not find the denial of habeas relief debatable, a certificate of appealability will likewise be denied.

II. PROCEDURAL HISTORY

Attorney Mark Rubenstein initiated these proceedings by the filing of the instant Petition.

The two issues raised were:

A. Mr. Hayes, was denied his Sixth Amendment right to the effective assistance of counsel at trial because Trial Counsel did not thoroughly investigate or subpoena several alibi witnesses. These witnesses would have corroborated Mr. Hayes’ claim that he was not involved in the robbery. Furthermore, the testimony of these witnesses would have bolstered Trial Counsel’s attempts to show that Mr. Hayes’ inculpatory statement was not credible but the product of Mr. Hayes’ severe learning disability, low intelligence and his desire to tell the detectives what they wanted to hear so that he could be released. By permitting PCRA counsel to withdraw and implicitly adopting PCRA counsel’s determination that Trial Counsel was not ineffective for failing to investigate Mr. Hayes’ alibi witnesses, Judge Zottola rendered a decision that was an unreasonable application of clearly established federal law.
B. Mr. Hayes was denied his Sixth Amendment right to the effective assistance of counsel at trial because Trial Counsel failed to challenge the propriety of Mr. Hayes' arrest at the suppression hearing. The arresting officers testified that they arrested Mr. Hayes on an outstanding juvenile warrant. The Commonwealth did not produce a copy of the alleged juvenile warrant. None of the arresting officers testified that they ever saw this juvenile warrant. The only testimony offered at the suppression hearing consisted of hearsay Detective Nutter, who testified that he spoke with Mr. Hayes' juvenile probation officer to confirm the existence of the warrant. Trial Counsel did not object to the officers' hearsay testimony concerning the warrant or otherwise challenge the propriety of the warrant. PCRA Counsel acknowledged that Trial Counsel was deficient for failing to properly litigate this issue or preserve it for direct appeal, but reasoned that Mr. Hayes was not prejudiced by Trial Counsel's errors in this regard because Judge Zottola 's finding that Mr. Hayes' waiver of his Miranda rights was knowing and intelligent would purge the taint of any potential illegal arrest and render his statement admissible regardless of a Fourth Amendment violation. By permitting PCRA counsel to withdraw and implicitly adopting PCRA counsel's determination that Trial Counsel's deficient performance did not prejudice Mr. Hayes, Judge Zottola rendered a decision that was an unreasonable application of clearly established Federal law.

ECF No. 1 at 15. Respondents filed an Answer in which they raised, inter alia, the AEDPA statute of limitations, asserted that Petitioner procedurally defaulted his two claims, and also denied that Petitioner was entitled to relief on the merits. ECF Nos. 5 - 7. Respondents also attached copies of much of the state court record to their Answer. Respondents caused the original state court record to be transmitted to this Court. Petitioner filed a traverse claiming that he had new evidence of his actual innocence so as to overcome his violation of the AEDPA statute of limitations. ECF No. 10. All parties have consented to the plenary exercise of jurisdiction by the Magistrate Judge. ECF Nos. 8, 9.

III. APPLICABLE LEGAL PRINCIPLES

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, '101 (1996) (the “AEDPA”) which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. ' 2254 was enacted on April 24, 1996. Because Petitioner=s habeas Petition was filed after its effective date, the AEDPA is applicable to this case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).

Respondents pointed out in their Answer that this petition is untimely under AEDPA. As relevant here, AEDPA requires that state prisoners file their federal habeas petition within one year after their conviction became final.[1] Specifically, AEDPA provides that:

(d)(1) 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 limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(2) 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 shall not be counted ...

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