United States District Court, M.D. Pennsylvania
DAMIEN M. SCHLAGER, Petitioner
COLEMAN, et a/., Respondents
D. MARIANI UNITED STATES DISTRICT JUDGE
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.
[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
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.
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.
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.
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.
September 30, 2014, Schlager filed the instant federal habeas
petition. (Doc. 1). On December 1, 2014, he filed an amended
petition. (Doc. 9).
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 ...