United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge
Thomas Appleyard, an inmate confined in the State
Correctional Institution, Houtzdale, Pennsylvania, filed the
instant petition for writ of habeas corpus pursuant to 28
U.S.C. §2254. He attacks a conviction imposed by the
Court of Common Pleas for County, Pennsylvania. (Doc. 1).
Following careful consideration of the parties'
submissions, and for the reasons discussed below, the Court
will dismiss the petition as untimely. See 28 U.S.C.
victim in this case was born on February 18, 1974, in Mill
Hall, Clinton County, Pennsylvania. (N.T. p. 15). In the
Spring of 1985, Petitioner, Thomas Clair Appleyard married
the victim's mother, Edna Lose. (N.T. p. 16). After the
marriage, the victim lived together with her mother, the
Petitioner, and her brother, in an apartment in Blanchard,
Pennsylvania. (N.T. p. 16).
form of discipline, Petitioner would paddle the victim with a
wooden paddle, containing holes, when she would not do her
chores. (N. T. p. 16-17). The victim testified that the
paddling hurt. (N.T. p. 17). On November 23, 1986, Petitioner
called the victim, who was then twelve years old, into his
room and told her to take of her clothes. (N.T. p. 18). The
victim was scared and refused. Id. At some point,
either Petitioner or the victim removed all of her clothes
and while the victim was crying and saying “no, ”
Petitioner began to touch her breast and vaginal areas.
Id. Later that evening, the victim reported the
incident to her mother. (N.T. p. 19). Additionally, the
victim reported this incident to Children and Youth Services,
as well as Trooper Sally Brown of the Pennsylvania State
Police. (N.T. p. 19-20). Petitioner moved out of the home on
the 23rd of November, the evening of the incident,
only to move back to the residence sometime in 1987.
after Petitioner was allowed to return to the residence, he
began to have indecent contact with the victim again. (N.T.
p. 21). He now would engage in sexual intercourse with her.
Id. This behavior began in February 1988.
Id. In addition to sexual intercourse, Petitioner
began performing oral sex on the victim and forced her to
perform oral sex on him. (N.T. p. 22). The victim was afraid
to tell anyone about these incidents because Petitioner told
her that if she did, she would be put in a home for girls.
(N.T. p. 22).
the victim moved in with her grandfather in 1988 (N.T. p.
24), Petitioner made her maintain daily telephone contact
with him. (N.T. p. 26). Additionally, Petitioner would make
the victim come to his apartment on a weekly basis to engage
in oral sex as well as sexual intercourse. (N. T. p. 32). In
addition to fearing Petitioner's threats, Petitioner
would also punish the victim by painfully inserting plastic
“dildos' in her vaginal and rectal areas. This type
of punishment would take place whenever the victim would not
do her chores or be somewhere she wasn't supported to be.
Similarly, if the victim would not go into his apartment or
just generally disobey him, this would take place. (N.T. p.
29-30). Tracy was afraid of the “dildos” and when
Appellant would use them on her, she would cry and tell him
“no”. (N.T. p. 29).
Petitioner took nude photographs of the victim posing with
the sexual devices and threatened to spread the photos around
and to take them to her school if she did not listen. (N.T.
31-32). These incidents took place at least once a week, of
not more, from January 1988, through and until March 1991.
(N.T. p. 51). The victim did not want any of these incidents
to occur but felt that she had no choice. (N.T. p. 51).
was charged with once count of statutory rape, thirty-nine
counts of rape, sixty-five counts of involuntary deviate
sexual intercourse, thirty-nine counts of indecent assault
and one count of corruption of minors. See Commonwealth
of Pennsylvania v. Thomas C. Appleyard,
CP-14-CR-0001601-1992 (Criminal Docket). On March 22, 1994,
after a jury trial, Petitioner was found guilty of all 145
counts in which he had been charged. Id.
April 4, 1994, Petitioner was sentenced to an aggregate
sentence of thirty-one (31) to sixty-two (62) years
April 11, 1994, Petitioner filed a direct appeal to the
Pennsylvania Superior Court. (Doc. 24-1 Notice of Appeal). He
raised the following two issues for review:
1. Whether the trial court erred in denying Appellant's
motion in limine and in permitting testimony to be introduced
at trial concerning prior sexual misconduct between Appellant
and the victim, and whether trial counsel was ineffective for
failing to seek a cautionary instruction upon the admission
of such evidence?
2. Whether separate sentences for thirty-nine counts of rape
and sixty-five counts of involuntary deviate sexual
intercourse constitute an illegal sentence, when the counts
arose from the same criminal conduct?
(Doc. 24-1 at 33, Superior Court Memorandum Opinion).
Memorandum Opinion filed August 29, 1995, a panel of the
Pennsylvania Superior Court vacated Petitioner's sentence
and remanded for re-sentencing. Id.
September 27, 1995, Petitioner filed an allowance of appeal
to the Pennsylvania Supreme Court, which was denied on April
18, 1996. (Doc. 24-1 at 38-39, Order of Supreme Court).
August 26, 1996, Petitioner was re-sentenced to an aggregate
term of imprisonment of not less than twenty-seven (27)
years, nor more than fifty-four (54) years. See
Commonwealth of Pennsylvania v. Thomas C. Appleyard,
CP-14-CR-0001601-1992 (Criminal Docket).
September 5, 1996, Petitioner filed a motion to reconsider
and modify the sentence imposed and to reduce the period of