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Johnson v. Tritt

United States District Court, W.D. Pennsylvania

February 28, 2017

RICKY JOHNSON, Petitioner,
BRENDA TRITT, et al., Respondents.

          Rusheen R. Pettit District Attorney


          Cynthia Reed Eddy United States Magistrate Judge

         Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner Ricky Johnson (“Petitioner”), in which he is challenging the judgment of sentence imposed on him by the Court of Common Pleas of Allegheny County, Pennsylvania, on February 28, 2007. Respondents Brenda Tritt, the Attorney General of the State of Pennsylvania, and the District Attorney of Allegheny County (“Respondents”) have filed a motion to dismiss the petition as untimely (ECF No. 27).

         For the reasons set forth below, Respondents' motion will be granted, the petition for writ of habeas corpus will be dismissed as untimely, and a certificate of appealability will be denied.

         I. Facts and Procedural History

         Following a jury trial in the Court of Common Pleas of Allegheny County, Petitioner was found guilty of criminal attempt, aggravated assault, and recklessly endangering another person. The trial court sentenced Petitioner to 17 ½ to 35 years' imprisonment on February 28, 2007. Petitioner's conviction and sentence was affirmed on direct appeal by the Superior Court of Pennsylvania on February 2, 2009. He did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania. Petitioner alleges that his appellate counsel Arthur “Bloom never advised [him] of [the Superior Court's] decision, and that is why he “never sought further review in the Supreme Court of Pennsylvania” of the Superior Court's decision. (ECF No. 33 at 1). The record reflects that Attorney Bloom was disbarred by order dated March 23, 2009, following lengthy disciplinary proceedings involving an unrelated matter.[2] (ECF No. 27-2 at 28).

         Petitioner has submitted a letter he sent to Attorney Bloom on October 23, 2008, inquiring into the status of his direct appeal, and Attorney Bloom's response thereto, in which he wrote that “Oral Argument [regarding Petitioner's direct appeal] has been scheduled for December 3, 2008 . . . . I will contact you following the Oral Argument to give an indication with respect to how the judges received our argument.” (ECF No. 34-1 at 3). Petitioner has also submitted a letter he sent to Attorney Bloom on March 28, 2010, which was returned as “not deliverable as addressed.” (ECF No. 34-1 at 4-5). In the letter, Petitioner wrote:

I am writing you to inform you that I have written the Superior Court Prothonotary requesting a copy of my appeal docket sheet showing the disposition of my appeal. When I received the docket it showed the last entry's [sic], as February 02, 2009 Affirmed, Per Curiam and March 10, 2009 Remitted, Western District Filing Office. I received your letter after oral arguments and you stated that Superior Court panel agreed with the lower court and that we would be moving forward with the appeal and raising all claims of trial counsels [sic] ineffectiveness. I have made several attempts at contacting you by phone, with no luck.
Attorney Bloom, I know you are aware that the time to file an appeal is running out? Would you please write back or accept my phone call ASAP!!! I understand that there is a lot of time and distance between us but that shouldn't be reason for a lack of communication.

(Id. at 4). Petitioner apparently attempted to resend the letter on April 18, 2010, but it was again returned as undeliverable. (Id. at 3). The state court docket confirms that Petitioner was sent a copy of his docket sheet on February 17, 2010, in response to correspondence from him. (ECF 27-1 at 10).

         On June 17, 2010, Petitioner filed his first pro se Post-Conviction Relief Act (“PCRA”) petition in state court, which was dismissed as untimely on September 12, 2011. The Superior Court affirmed the dismissal of Petitioner's first PCRA petition on May 22, 2012, after having found that the petition was not timely. On July 8, 2013, Petitioner filed a second PCRA petition, which was dismissed on December 4, 2013. The Superior Court affirmed the dismissal, finding once again that the petition was untimely and that Petitioner had not satisfied any of the exceptions to the timeliness requirement. Petitioner filed a third PCRA petition on May 1, 2015.

         Before the PCRA court issued a decision regarding the third PCRA petition, Petitioner filed the instant petition for writ of habeas corpus on September 1, 2015. In the petition, Petitioner acknowledged that his conviction had become final more than one year before he initiated these proceedings. However, he contended that his petition was not time-barred because:

[he] was abandoned by Appellate Counsel, Arthur Bloom who committed fraud by continually advising [him] that his appeal was pending and that he was diligently seeking relief for the Petitioner. In reality, Attorney Bloom had been disbarred during the pendency of the appeal and was willfully advising the Petitioner that his appeal was pending when it had already been dismissed. This action caused a late filing.

         (ECF No. 3 at 14).[3] The next day, upon motion by Petitioner, the Court stayed the case and held it in abeyance so Petitioner could exhaust his state law remedies. The case was reopened on August 9, 2016 - approximately one month after the Superior Court issued an opinion affirming the PCRA court's dismissal of the third petition as untimely.

         On October 25, 2016, Respondents filed a motion to dismiss, in which they argue that the petition should be dismissed as untimely. Petitioner filed a “reply” on January 25, 2017, arguing that Respondents' motion to dismiss is procedurally improper and, in any event, that he is entitled to statutory and equitable tolling or to an alternative start date pursuant to 28 U.S.C. § 2244(d)(1)(B) because of “attorney abandonment” and

other impediments created by state action that prevented petitioner from timely filing his Federal Habeas Petition such as: (A) the state Court's refused [sic] to apply the exceptions of 42 Pa.C.S. ยงยง 9545(b)(1)(ii), (b)(2), to any of the PCRA petitioner. (B) The law in Pennsylvania is in conflict and in a state of flux regarding issues of public record, the requirements of the Pro-se, unrepresented incarcerated petitioner for filing untimely PCRA petitions under the exceptions of the PCRA Statute. (C) The rule of untimeliness/time-bar of filing PCRA petitions is not clearly established and consistently followed. (D) The state Court's application of the time-bar rule was/is an exorbitant application of the rule in petitioner's case. (E) There was government interference that also interfered with petitioner timely filing his Federal Habeas Petition which consisted of, petitioner being transferred out-of-State to Virginia, without access to Pennsylvania law, Legal materials/personal property, the state Court's and prior ...

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