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Otero v. Warden, SCI Dallas

United States District Court, E.D. Pennsylvania

June 7, 2017

ANTHONY WILLIAM OTERO
v.
WARDEN, SCI DALLAS, et al.

          MEMORANDUM

          KEARNEY, J.

         Anthony William Otero petitions for habeas corpus relief under 28 U.S.C. §2254 claiming his state court sentence violates a newly recognized constitutional right. Following referral, Chief Magistrate Judge Linda K. Caracappa recommended we summarily dismiss Mr. Otero's petition as untimely. After considering Chief Magistrate Judge Caracappa's extensive analysis and Mr. Otero's Objections, we adopt Chief Magistrate Judge Caracappa's Report and Recommendation and dismiss Mr. Otero's habeas petition as barred by the statute of limitations. Mr. Otero is not entitled to the statutory tolling or equitable tolling necessary to place his petition within the strict one-year limitation, and his petition cannot be substantively reviewed.

         I. Background

         Mr. Otero pled guilty to aggravated assault and three counts of possession with intent to deliver a controlled substance.[1] On April 27, 2012, the state court sentenced Mr. Otero from six years and seven months to thirteen years and two months' imprisonment. Mr. Otero's sentence became final on May 28, 2012.[2]

         On September 19, 2012, Mr. Otero timely sought review under the Pennsylvania Post-Conviction Relief Act ("Act").[3] The state court dismissed Mr. Otero's petition as meritless on April 3, 2013. On July 2, 2014, Mr. Otero again sought review under the Act based this time on Alleyne v. United States where the Supreme Court held facts increasing the statutory minimum sentence for crime must be decided by a jury beyond a reasonable doubt.[4] The state court dismissed Mr. Otero's claim as untimely on February 24, 2015, and on October 27, 2015, the Pennsylvania Superior Court affirmed the dismissal.[5]

         II. Analysis

         On August 25, 2016, Mr. Otero asked this Court for habeas corpus review arguing his state court sentence is illegal under Alleyne.[6]Mr. Otero claims he is entitled to tolling during the processing of his second state petition and for the time the Supreme Court decided Alleyne until the prison library made the opinion available to him. Chief Magistrate Judge Caracappa found: (1) Mr. Otero's second state petition may not be statutorily tolled because of improper filing; (2) Mr. Otero is not entitled to equitable tolling for the prison's failure to immediately make Alleyne available in the prison library; and (3) Alleyne does not apply retroactively on collateral review. We agree with the Chief Magistrate Judge.

         A. Alleyne is not retroactive on collateral review.

         We cannot substantively review a petition for habeas corpus if it does not meet the procedural standard of timeliness.[7] Mr. Otero cites the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") exception for newly recognized constitutional rights, asserting Alleyne is "made retroactive on collateral review."[8] As Chief Magistrate Judge Caracappa found, the Supreme Court decided Alleyne after Mr. Otero's finalized sentence, and our court of appeals directs, "a new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive."[9] The Supreme Court will not make a holding retroactive unless it announces a substantive rule placing "certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to prescribe" or it contains "watershed rules of criminal procedure."[10] Our court of appeals directs Alleyne does not announce a retroactive rule, "...the rule of criminal procedure announced by the Supreme Court in Alleyne does not apply retroactively to cases on collateral appeal."[11]

         Mr. Otero objects to Chief Magistrate Judge Caracappa's Recommendation because our court of appeals' holding regarding the retroactivity of Alleyne is "directly refuted by United States Supreme Court precedent."[12] In Montgomery v. Louisiana, [13]the Court decided Miller v. Alabama[14] announced a new substantive constitutional rule necessarily retroactive on collateral review.[15] In Miller, the Court held mandatory life sentences without parole for juveniles violate the Eighth Amendment as "cruel and unusual punishment." The Court explained the retroactivity of substantive rules over procedural rules:

Even where procedural error has infected a trial, the resulting conviction or sentence may still be accurate; and, by extension, the defendant's continued confinement may still be lawful. For this reason, a trial conducted under a procedure found to be unconstitutional in a later case does not, as a general matter, have the automatic consequence of invalidating a defendant's conviction or sentence.[16]

         Mr. Otero's objection lacks merit. The Supreme Court has not made Alleyne retroactive, and the rule in Alleyne dictates only the procedure a criminal defendant must face. Unlike Miller where the age of the defendants provided the substantive element, Alleyne only mandates a jury finding for each additional fact contributing to an increase of the statutory minimum sentence and makes no reference to the status of the defendant or the crime alleged.

         The statutory tolling exception applies only to those petitions "properly filed."[17] Our court of appeals directs a petition is properly filed when it is "submitted according to the state's procedural requirements, such as the rules governing the time and place of filing."[18] Mr. Otero's second state petition did not abide by the rules governing the time of filing, and he is barred from statutory tolling while the claim processed.

         B. Mr. Otero is not entitled ...


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