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Schlager v. Coleman

United States District Court, M.D. Pennsylvania

March 28, 2018

DAMIEN M. SCHLAGER, Petitioner
v.
BRIAN
v.
COLEMAN, et a/., Respondents

          MEMORANDUM

          ROBERT D. MARIANI UNITED STATES DISTRICT JUDGE

         Petitioner Damien Schlager ("Schlager") filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court of Common Pleas of York County, Pennsylvania. (Doc. 1). Schlager subsequently filed an amended habeas petition. (Doc. 9). Respondents moved to dismiss the petition as untimely. (Doc. 15). The Court previously denied Respondents' motion to dismiss the petition as untimely, and found that there were factual issues relating to whether Schlager is entitled to equitable tolling of the statute of limitations. (Docs. 18, 19). The Court Ordered the parties to further develop the factual record regarding this issue. (Id.). Schlager acknowledges that his petition is untimely, but contends that equitable tolling should be applied as his assigned attorneys effectively abandoned him. (Doc. 23, p. 6). After consideration of the supplemental filings submitted by the parties in support of their respective positions on the equitable tolling issue, the Court will dismiss the habeas petition as untimely.

         I. Background

[Schlager] was accused of murdering Christina Colon and her unborn child. It was alleged that [Schlager] killed Ms. Colon after she claimed to be pregnant with his child and refused to get an abortion. At [Schlager's] trial, the Commonwealth played a tape recording of a conversation between [Schlager] and Larry Harcum. The Court admitted the recording into evidence. Mr. Harcum testified on December 12, 2005 that he consented to being wired by the police with a disk recorder. The resulting tape recording of a conversation between Mr. Harcum and [Schlager] was played in court. In his testimony, Mr. Harcum identified voices on the tape as his and [Schlager's]. In that recording, [Schlager] admits to committing the murder; specifically, [Schlager], referring to Ms. Colon, said "I shot her and she fell right down onto the stones. But it, it blew, I shot her in the back of the head, it blew right out the front." [Schlager] was also recorded asking Mr. Harcum to dispose of Ms. Colon's body and giving Mr. Harcum specific directions to the location of the body. The recording also includes several statements made by [Schlager] indicating that Ms. Colon had told him that she was pregnant; for example, [Schlager] said, referring to Ms. Colon, "She over six months pregnant, that means she got pregnant in February."
The Commonwealth presented additional witnesses including several police officers involved either in the wire-tap operation and who interviewed [Schlager] before his arrest, an expert in forensic entomology who studied certain bugs found on the victim's body and testified as to the date of Ms. Colon's [death] within a reasonable degree of scientific certainty, and experts in forensic pathology, forensic anthropology and OB/GYN. Other testimony was presented, including that of David Killean, a manager assistant at Verizon Wireless who testified to the records of calls received or made by Ms. Colon's phone, and Melissa Bohin, a friend of Ms. Colon, who testified that Ms. Colon had called her child's father and that the number called belonged to [Schlager].
[Schlager] himself testified at trial. The Defense also presented the expert testimony of a forensic pathologist who could not say within a reasonable degree of medical certainty that Ms. Colon was pregnant at the time of her death. Friends, family and other people [Schlager] has had relationships with also testified.

Commonwealth v. Schlager, 2013 WL 11254070, at *1 (Pa. Super. 2013) (citing trial court opinion, 7/5/12 at 2-3 (citations omitted)).

         On December 15, 2005, following a jury trial, wherein Schlager was represented by Gerald Lord, Esquire, Schlager was found guilty of first degree murder and murder of an unborn child. Commonwealth v. Schlager, CP-67-CR-0004884-2004 (York County filed October 9, 2004). On February 22, 2006, Schlager was sentenced to consecutive life sentences on each criminal count. Id. He filed post-sentence motions, which were denied. Id.

         On September 1, 2006, Schlager filed a timely notice of appeal with the Pennsylvania Superior Court. Commonwealth v. Schlager, 953 A.2d 606 (Pa. Super. 2008) (Table). On March 4, 2008, the judgment of sentence was affirmed in part, and vacated in part on the basis that the trial court imposed a monetary fine of $100, 000 without having held a hearing to determine Schlager's ability to pay. Id. On June 5, 2008, Schlager filed a petition for allowance of appeal with the Pennsylvania Supreme Court. Commonwealth v. Schlager, 589 Pa. 788, 959 A.2d 929 (Pa. 2008) (Table). On October 17, 2008, the Pennsylvania Supreme Court denied the petition for allowance of appeal. Id. On January 15, 2009, Schlager filed a petition for writ of certiorari to the United States Supreme Court. On April 20, 2009, the United States Supreme Court denied the petition for writ of certiorari. Schlager v. Pennsylvania, 556 U.S. 1194, 129 S.Ct. 2017 (2009). At this point, his judgment of sentence became final. See 42 PA. CONS. STAT. § 9545.

         On November 10, 2009, Schlager filed a pro se petition for post conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. Schlager, CP-67-CR-0004884-2004. The PCRA court appointed T. Korey Leslie, Esquire, to represent Schlager. On June 25, 2012, the PCRA court denied the petition. (Doc. 1, p. 21). Schlager had until August 4, 2012 to file a timely appeal of the denial of his PCRA petition. On August 9, 2012, PCRA counsel filed a petition for leave to file an appeal nunc pro tunc with the Pennsylvania Superior Court. (Doc. 22-4, pp. 1-4, Commonwealth v. Schlager, 1597 MDA 2012 (Pa. Super. 2012)). On August 28, 2012, Schlager was granted allowance of appeal nunc pro tunc. (Id.). On September 5, 2012, Schlager filed a notice of appeal with the Pennsylvania Superior Court. (Id.). On October 22, 2013, the Pennsylvania Superior Court affirmed the denial of the PCRA petition. Commonwealth v. Schlager, 2013 WL 11254070 (Pa. Super. 2013). Schlager had thirty days from that date, or until November 21, 2013, to file a petition for allowance of appeal with the Pennsylvania Supreme Court. On November 22, 2013, PCRA counsel filed a petition for allowance of appeal with the Pennsylvania Supreme Court. (Doc. 9-1, pp. 65-68); Commonwealth v. Schlager, 619 MT 2013 (Pa. 2013). On November 25, 2013, the Pennsylvania Supreme Court administratively closed the temporary docket because the petition for allowance of appeal was untimely by one day. [Id.].

         On September 18, 2014, Schlager filed a pro se petition for leave to file a petition for allowance of appeal nunc pro tunc. Commonwealth v. Schlager, 141 MM 2014 (Pa. 2014). On November 3, 2014, the Pennsylvania Supreme Court denied the petition for leave to file a petition for allowance of appeal nunc pro tunc. Id.

         On September 30, 2014, Schlager filed the instant federal habeas petition. (Doc. 1). On December 1, 2014, he filed an amended petition. (Doc. 9).

         II. Discussion

         The court shall "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No.104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d)(1). Specifically, a state prisoner ...


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