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Riley v. Myers

United States District Court, M.D. Pennsylvania

May 1, 2018

JAMES W. RILEY, Petitioner,
v.
ROBERT W. MYERS, et al., Respondents.

          Schwab Magistrate Judge.

          MEMORANDUM

          RICHARD P. CONABOY UNITED STATES DISTRICT JUDGE.

         Petitioner, James W. Riley's, Independent Action for Relief from Final Order, or Alternatively, Motion for Relief from Final Order Pursuant to Fed. R. Civ. Proc. 60(b) (Doc. 19) is pending before the Court. With this filing, Petitioner seeks review of the Court's previous decisions denying habeas relief. (Id.) He asserts that McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), and Satterfield v. District Attorney of Philadelphia, 872 F.3d 152 (2017), require a different outcome and his claims for ineffective assistance of counsel should be reviewed on the merits based on his showing of actual innocence. (Id.) The Court disagrees for the reasons discussed below.

         I. Background

         In February 1993, Petitioner was convicted by a jury of first degree murder in the July 1991 shooting death of his stepdaughter. (Doc. 12 at 4; Doc. 15 at 2.) On August 11, 1993, he was sentenced to life imprisonment. (Doc. 12 at 4.) At trial, Petitioner requested but was refused a jury instruction as to voluntary intoxication. (Doc. 12 at 4.) Following direct appeal to the Pennsylvania Superior Court, the conviction was vacated and the matter was remanded for a new trial. (Doc. 12 at 4; Doc. 15 at 2.) Petitioner asserts the Superior Court's decision was based on the determination that sufficient evidence was presented to merit Petitioner's requested jury instruction of voluntary intoxication. (Doc. 12 at 4.) Petitioner's new trial was held in February 1996. (Id.) On March 1, 1996, a jury again convicted Petitioner of first degree murder and Petitioner was sentenced to life imprisonment. (Id.) Petitioner filed a direct appeal with the Pennsylvania Superior Court raising the issue that the voluntary intoxication jury instruction was in error. (Id.) By decision dated October 21, 1996, and filed on December 1, 1996, Petitioner's conviction and sentence were affirmed by the Pennsylvania Superior Court. (Doc. 15 at 2.) No allowance of appeal to the Pennsylvania Supreme Court was filed, and no PCRA action was filed. (Doc. 17 at 2-3.)

         Petitioner filed the 28 U.S.C. § 2254 at issue here on June 30, 2000. (Doc. 1.) Petitioner identified four grounds for relief: 1) his conviction was obtained by a violation of the protection against double jeopardy; 2) he was denied effective assistance of counsel; 3) he was denied the right to appeal; and 4) he was denied access to the courts. (Doc. 1 at 4-5.) He acknowledged that none of the claims had been previously presented in any other court. (Doc. 1 at 5.) While difficult to parse, Petitioner seemed to indicate in his supporting Memorandum of Law that the violation of his constitutional rights was grounded in the performance of trial counsel and the prosecutor related to the voluntary intoxication defense. (See Doc. 1 at 9.) A Report and Recommendation dated August 11, 2000, recommended that the Court deem the petition withdrawn based on Petitioner's response to the Order which directed him to inform the Court whether he wanted to proceed with his Petition as filed or withdraw it and file an all inclusive petition within one year. (Docs. 5-7.) By Memorandum and Order of September 22, 2000, the Court adopted the Report and Recommendation and deemed the petition withdrawn. (Doc. 8 at 3.)

         On May 3, 2002, Petitioner filed another 28 U.S.C. § 2254 petition related to his 1993 first degree murder conviction. (Doc. 1. Civ. A. No. 3:02-CV-750.) Among his claims, Petitioner asserted ineffective assistance of counsel regarding the defenses presented, including intoxication, and failure to preserve and raise the issue of legal, factual or actual innocence based on his lack of intent. (Doc. 1 at 20-29, Civ. A. No. 3:02-CV-750.) Petitioner provided factual averments not contained in his previous petition, pointing to trial counsel's failure to interview essential witnesses and elicit testimony on the issue of intent at trial. (Id.) In support of these claims, Petitioner identified evidence presented at trial about his intoxication at the time of the incident and the period of time leading up to it, evidence about his general behavior, and expert reports related to the issues. (Id. at 21-24, 26.) The Report and Recommendation filed on September 11, 2002, concluded that the petition was barred by the AEDPA's statute of limitations. (Doc. 24, Civ. A. No. 3:02-CV-750.) After considering equitable tolling principles and related matters, the Court concluded the May 3, 2002, Petition was barred by the applicable statute of limitations provisions of 28 U.S.C. § 2244(d). (Doc. 31.) Petitioner appealed the decision to the Third Circuit Court of Appeals (Docs. 34, 35, Civ. A. No. 3:02-CV-750 (Appellate Docket number 02-4530).) By Order of June 20, 2003, the Circuit Court denied Petitioner's request for a certificate of appealability, concluding that Petitioner's June 2002 action was barred by the statue of limitations found in 28 U.S.C. § 2244(d) and equitable tolling did not apply. See Third Circuit Court of Appeals No. 02-4530 June 20, 2003, Docket Entry. The Order added that

[a]ppellant had until 1/16/98 to file a timely Section 2254 petition. His petition was dated 5/3/02. Because appellant shows neither that he diligently pursued his claims nor that he was prevented in some extraordinary way from doing so, there are no grounds for equitable tolling. Appellant's assertion that he lacked access to his complete trial record, without more, does not justify equitable tolling.

(Id. (citations omitted).) A petition for a writ of certiorari in the United States Supreme Court was docketed on August 21, 2003, at No. 03-5999. (Doc. 40.) By Order of October 3, 2003, the Court denied the petition for a writ of certiorari. (See Doc. 41.)

         On September 10, 2004, Petitioner filed another 28 U.S.C. § 2254 petition asserting error related to his 1993 conviction. (Doc. 1, Civ. A. No. 3:04-CV-2008.) In support of his claim that there was insufficient evidence to convict him of first degree murder, Petitioner asserted that “[e]vidence, including defendant's confession and witnesses, identification of Appellant as shooter was sufficient to support voluntary or involuntary manslaughter on the ground of voluntary intoxication, conviction and not first degree murder.” (Doc. 1 at 31, Civ. A. No. 3:04-CV-2008.) In support of his ineffective assistance of counsel claim, Petitioner asserts that “[i]f counsel had called witnesses to testify in Appellant's defense, there is reasonable probability that he would have been acquitted of voluntary or involuntary manslaughter.” (Id. at 35-36.) The Magistrate Judge's September 30, 2004, Report and Recommendation determined that the filing was a second or successive petition which should be dismissed and Petitioner could move in the Third Circuit for leave to file a successive petition. (Doc. 6 at 4, Civ. A. No. 3:04-CV-2008.) The Court adopted the Report and Recommendation by Order of October 21, 2004. (Doc. 8, Civ. A. No. 3:04-CV-2008.)

         Over two years after the Court issued the closing Order in Civ. A. No. 3:04-CV-2008, Petitioner filed the Petition for Relief in Accordance to F.R.C.P. Rule 60(b)(6) in case number 3:00-CV-1183. (Doc. 9) The May 3, 2007, filing was accompanied by a brief in support (Doc. 10) in which Plaintiff asserts that the District Court should have held a hearing before taking action on his petition. (See Doc. 10 at 1.) Plaintiff further averred that

[t]rial counsel failed to call important character witnesses--the bartender and barmaid at Kates bar in Mercersburg, PA--whom witnesses the amount and length of time petitioner was inebriated, in order to substantiate his claim of diminished capacity. Moreover, as at the penalty phase, trial counsel failed to call--Major Tommy Keefer, Robert Brindle, and Robert Hoffman-all of whom trial counsel new [sic] as character witnesses that would demonstrate petitioner's character under normal circumstances. The former allegations testimony was critical to the defense because in order to convict the petitioner with the requisite “intent” he would have to have his full faculties at the time of the charged crime.
Certainly, there could be no reasonable basis for omitting this evidence when trial counsel was asserting a diminished capacity defense. This testimony would have demonstrated that petitioner could have not had the for-thought or required intent for first degree murder. The latter would have demonstrated petitioner [sic] impeccable character in normal circumstances, in order to demonstrate the mitigating circumstances for sentencing purpose, as well as supporting his diminished capacity defense.

(Doc. 10 at 3.) On May 18, 2007, the Court denied Petitioner's Rule 60(b)(6) motion on the basis that it was not filed within a reasonable time of the September 22, 2000, Order ...


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