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Ricks v. Thomas

United States District Court, M.D. Pennsylvania

May 19, 2017

GREGORY L. RICKS, Petitioner,
v.
SUPT. JOHN THOMAS, Respondent.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge

         I. BACKGROUND

         Gregory L. Ricks, an inmate presently confined at the State Correctional Institution, Chester, Pennsylvania, (SCI-Chester), filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. Named as Respondent is SCI-Chester Superintendent John Thomas. Service of the Petition was previously ordered Petitioner was convicted on January 20, 2009 of receiving stolen property; being a person not to possess a firearm; delivery of a controlled substance; and delivery and possession of a controlled substance following a jury trial in the Court of Common Pleas of Lycoming County, Pennsylvania.[1] See Doc. 13-1, p. 1. On April 3, 2009, Ricks was sentenced to a seven year, three month to fourteen and a half year term of imprisonment.[2] See id. at p. 4. Following a direct appeal to the to the Superior Court of Pennsylvania, Ricks' conviction and sentence were affirmed on March 4, 2010. See id. at p. 5. Ricks argued on appeal that the evidence was insufficient to sustain a guilty verdict, that the verdict was against the weight of the evidence, and that the sentence constituted an abuse of discretion. The Superior Court deemed the first two arguments waived because they were not addressed in Ricks' appellate brief. See id. at p. 11. A further appeal was not pursued.

         On April 22, 2010, Ricks filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA) alleging ineffective assistance of counsel for failure to file a suppression motion with respect to the discovery of the rifle in his apartment.[3] Counsel was appointed to represent the Petitioner. On June 5, 2010, Petitioner's court appointed counsel filed a no merit letter in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). The sentencing court subsequently dismissed the PCRA petition on August 10, 2010. See Id. at p. 30. Petitioner did not appeal.

         Instead, Petitioner filed a second PCRA action on January 10, 2011 which alleged the improper seizure of a firearm, failure to properly serve the criminal complaint, and that the evidence was insufficient to show that the weapon had been stolen in light of the absence of a serial number on the rifle. See Doc. 13-1, p. 32. Counsel was again appointed to represent Ricks and a Finley/Turner letter was thereafter submitted by counsel. The sentencing court denied PCRA relief by decision dated May 3, 2011. By decision dated February 21, 2012, the Superior Court affirmed that denial on the basis that Petitioner's claims were either waived, previously litigated, or otherwise inadequate. See id. at p. 51. The Supreme Court of Pennsylvania denied Ricks' petition for allowance of appeal on October 29, 2012.

         Petitioner then filed a third PCRA action on November 14, 2012[4] which sought relief on the grounds that PCRA counsel's performance was deficient for failing to investigate his mental illness; that he was illegally evicted from his apartment; and that he was not in possession of the rifle found in the apartment. See id. at p. 65. This action was dismissed as untimely on January 22, 2013.

         A fourth PCRA petition filed by Ricks on April 28, 2014 was likewise dismissed as untimely on July 1, 2014. See id. at p. 69. This action asserted the evidence was insufficient to establish that he was in possession of a stolen rifle or was in possession of a controlled substance. An appeal from that decision was dismissed by the Superior Court on April 1, 2015. See id. at p. 70.

         Petitioner's pending action before this Court argues that he is entitled to federal habeas corpus relief on the grounds of newly discovered evidence; denial of due process because he was permitted to represent himself on appeal despite being mentally unfit; and ineffective assistance of counsel.

         Respondent seeks dismissal of the petition on the grounds that it was untimely filed and because Ricks failed to exhaust his available state court remedies. Alternatively, Respondent argues that Petitioner's arguments are subject to dismissal for lack of merit.

         This matter is now ripe for consideration. Although granted an opportunity to do so, Petitioner has not filed a reply addressing the Respondent's arguments for dismissal.

         II. TIMELINESS

         Respondent contends in part that Petitioner has not filed a timely habeas corpus action. See Doc. 13, p. 14. Ricks' pending § 2254 petition is dated May 20, 2015[5] and will be deemed filed as of that date. See Houston v. Lack, 487 U.S. 266 (1988)(a prisoner's action is deemed filed at the time it is given to prison officials for mailing to the Court.

         Section 2244(d) of Title 28 of the United States Code provides, in relevant part, as follows:

(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 for seeking such review . . .
(d)(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 toward any period of limitation under this subsection.

See generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999).

         Under the plain terms of § 2244(d)(1)(A), the period of time for filing a habeas corpus petition begins to run when the period for direct review expired. See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)(“upon conclusion of direct review of a judgment of conviction, the one year period within which to file a federal habeas petition commences, but the running of the period is suspended for the period when state post-conviction proceedings are pending in any state court.”)(emphasis in original).

         The running of the limitations period is suspended for the period when properly-filed state post-conviction proceedings are pending in any state court. See Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001)(an untimely PCRA petition does not toll the statute of limitations for a federal habeas corpus petition); Merritt v. Blaine, 326 F.3d 157, 165-66 & n. 6 (3d Cir. 2003)(federal courts are bound by state court's determination that a PCRA petition was untimely and thus not “properly filed”). However, the period during which a Section 2254 applicant could have filed a petition for writ of certiorari with the Supreme Court of the United States from denial of an ...


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