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Dixon v. Wenerowicz

United States District Court, W.D. Pennsylvania

April 18, 2017


          Maureen P. Kelly Chief Magistrate Judge


          David Stewart Cercone United States District Judge

         Terel Darnell Dixon ("Petitioner") is a state prisoner who has filed an Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), ECF No. 9, seeking to attack his state court conviction for third degree murder.

         The case was referred to Chief Magistrate Judge Maureen Kelly in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Civil Rules 72.C and D.

         Chief Magistrate Judge Kelly's Report and Recommendation, ECF No. 60, filed on January 24, 2017, recommended that the Amended Petition be dismissed because Petitioner violated the AEDP A one year statute of limitations by three days and that he failed to carry his burden to show entitlement to equitable tolling. Petitioner was informed that he could file Objections to the Report. After being granted an extension of time in which to file his Objections, Petitioner filed a 21 page Objection to the Report, ECF No. 63 and a 17 page Brief in Support of Objections, ECF No. 64.

         Nothing in Petitioner's Objections or in the Brief in Support merits rejection of the Report.

         A. The Post Sentence Motion did not statutorily toll the AEDPA limitations period.

         We note that in his Brief in Support of his Amended Petition, Petitioner conceded that this case was not filed within one year of his conviction becoming final due to his Petition being filed two days beyond the one year statute of limitations. ECF No. 13 at 4 ("As such, the Petition will appear to be untimely on its face by approximately 2 (two) days."). Accordingly, the Report conducted its own analysis of the AEDPA statute of limitations and found that indeed the case was filed three days late. The Report further concluded that other than the first Post Conviction Relief Act ("PCRA") Petition, which statutorily tolled the AEDPA statute of limitations, Petitioner was not entitled to any other statutory tolling. The Report also concluded that Petitioner failed to show entitlement to any equitable tolling.

         In his Objections for the first time, Petition contends that this case was timely filed, arguing for the first time in this case that the pro se Post Sentence Motion to Modify and Reduce Sentence (the "Post Sentence Motion") filed in the Court of Common Pleas on February 9, 2012, was, under state law, a properly filed first PCRA Petition, and, as such, statutorily tolled the AEDPA statute of limitations during its pendency from February 9, 2012 until February 21, 2012 when the Court of Common Pleas denied the Post Sentence Motion as being untimely filed. ECF No. 64 at 3- 6. The Court is not convinced.

         There are at least two problems with Petitioner's argument. Firstly, as noted Petitioner had conceded that his Petition was untimely and argued merely for the equitable tolling of the statute of limitations based upon principles of equity and for statutory tolling based upon the time during the pendency of Petitioner's first PCRA petition, which was filed on June 27, 2012. Now, for the first time in these proceedings, in his Objections to the Report, Petitioner argues that his Post Sentence Motion was a PCRA petition which entitled him to statutory tolling. This argument is unavailing as having been raised for the first time in Objections. See, e.g., De Cuir v. County of Los Angeles. 223 Fed.Appx. 639, 641 (9th Cir. 2007)("The district court did not abuse its discretion in declining to consider evidence De Cuir presented for the first time in his objections to the magistrate judge's report recommending summary judgment for defendants."). Indeed, "[f]or the district judge to review new evidence or arguments [raised in objections]'would reduce the magistrate's work to something akin to a meaningless dress rehearsal.'" In re Consolidated RNC Cases, 05 Civ. 1564, etc., 2009 WL 130178, at *10 (S.D.N.Y., Jan. 8, 2009)(quoting, Wong v. Healthfirst. Inc.. No. 04 Civ. 10061 (DAB), 2006 WL 2457944, at *1 (S.D.N.Y. Aug. 23, 2006)(some internal quotation marks omitted)). Because Petitioner failed to raise the argument that he was entitled to statutory tolling given that his Post Sentence Motion was really a PCRA petition, the Court will not consider this argument now for the first time raised in Objections.

         Secondly, even if this Court were to consider the argument raised for the first time in Objections, the Court is not convinced. Petitioner contends that under state law, the Court of Common Pleas was required to treat his untimely filed Post Sentence Motion as a properly filed PCRA petition, which the Court of Common Pleas failed to do. There is state law authority supporting Petitioner's contention that a Court of Common Pleas may or ought to treat such untimely filed post sentence motions as PCRA Petitions apparently so long as such post sentence motions seeks relief appropriate under the PCRA regime. The rule is not universal that such untimely filed Post Sentence Motions must be so treated especially where the post sentence motion seeks only to attack discretionary aspects of the convict's sentence something which is not apparently cognizable under the PCRA regime. Commonwealth v. Wrecks. 934 A.2d 1287, 1289 (Pa. Super. 2007) ("because Appellant's pro se filing does not request relief contemplated by the PCRA, the trial court was correct to treat Appellant's filing as a post-sentence motion and not a PCRA petition. See Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa.Super.2001) (holding that a filing which requests relief outside the PCRA will not be treated as a collateral petition)."). But see Commonwealth v. Taylor. 65 A.3d 462, 465-468 (Pa. Super. 2013) (criticizing Wrecks).

         Instantly, Petitioner's Post Sentence Motion, which he claims should have been treated as a PCRA Petition by the state courts, did exactly what the post sentence motion in Wrecks did, namely, attack the discretionary aspects of his sentence. While Petitioner mentioned a whole litany of his dissatisfactions with what transpired during the course of the criminal proceedings, in the Post Sentence Motion, Petitioner requested as relief that the "Court in its discretion should reconsider the sentence and substantially reduce the term of imprisonment which was imposed."). Petitioner's Post Sentence Motion at ¶ 9 (attached hereto as an appendix). Accordingly, the Post Sentence Motion, even under state law, should not have been considered a PCRA Petition pursuant to Wrecks.

         Petitioner has utterly failed to show that the state courts' treatment of his Post Sentence Motion was erroneous as a matter of state law. But even if he had, we note that Petitioner did not argue in the state courts that his Post Sentence Motion should be treated as a PCRA Petition. Pa. Superior Court slip op., ECF No. 19-29 at 3 ("On February 9, 2012, Appellant filed an untimely motion to modify sentence, which the trial court dismissed on February 21, 2012. Appellant did not appeal this determination or otherwise argue that the trial court should have treated this filing as a PCRA petition"). Having failed to argue in the state courts that his Post Sentence Motion was a PCRA Petition, it would not be proper for this court in the first instance to re-characterize what the state courts determined under state law to be an untimely filed post sentence motion. See, e.g., Hartmann v. Carroll. 492 F.3d 478, 482 n.8 (3d Cir. 2007) ("The Delaware courts interpreted Hartmann's Rule 35(b) motion as a pure plea for leniency, and so shall we."), abrogated on other grounds by Wall v. Kholi. 562 U.S. 545 (2011). Accordingly, because the Post Sentence Motion was treated by the state courts as an untimely filed Post Sentence Motion and not as a PCRA Petition, we decline Petitioner's invitation to now belatedly re-characterize his Post Sentence Motion as a PCRA petition. Because the Post Sentence Motion was both untimely filed and not deemed to be a PCRA petition by the state courts, the Post Sentence Motion cannot be considered a "properly filed application for State post- conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2) and this is so, even if a timely filed post sentence motion can be considered a "properly filed application for State post-conviction or other collateral review."

         Even if we were to answer this question in the first instance, we would hold that Petitioner's Post Sentence Motion was not a "properly filed application" because, treated as a Post Sentence Motion, it was untimely filed. Nor could the Post Sentence Motion be properly considered a PCRA Petition because it was not in the form of a PCRA Petition but in the form of a Post Sentence Motion within the contemplation of Artuzv. Bennet, 531 U.S. 4, 8 (2000) ("And an application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, ...

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