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Black v. Greene

United States District Court, W.D. Pennsylvania

May 24, 2018

SCOTT A. BLACK, Petitioner,
v.
SUPT. SCI GREENE, et al., Respondents.

          Nora Barry Fischer, District Judge

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         It is respectfully recommended that the Respondents' motion to dismiss (ECF No. 8) be granted, that the claims raised in the petition for a writ of habeas corpus (ECF No. 4) filed by Scott A. Black pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), be dismissed, and that a certificate of appealability be denied with respect to all claims.

         II. REPORT

         A. Relevant Background

         On February 12, 2014, Black pleaded guilty to two counts of second degree murder in the Court of Common Pleas of Forrest County. That same day, the court sentenced him to two consecutive terms of life imprisonment. Fred D. Hummel, Esq., and John M. Ingros, Esq., were his attorneys.

         No direct appeal was filed in the case. Accordingly, Black's judgment of sentence became final for the purpose of determining the timeliness of his petition for a writ of habeas corpus no later than on or around March 14, 2014. Pa.R.Crim.P. 720(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review).

         On May 22, 2015, Black filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. (ECF No. 8, Ex. A). His PCRA petition was based on the March 17, 2015, decision of the Court of Common Pleas of Forrest County on a "Petition to Set Aside Nomination Petition of Elizabeth A. Ziegler for District Attorney of Forest County Pursuant to the Pennsylvania Election Code, 25 P.S. § 2937, " which had alleged that Ziegler no longer resided in Forest County and was thus ineligible to run for re-election. A court had found that Ziegler owned a piece of property that was located partially in Warren County and partially in Forest County, with one structure in each county. It also had found that Ziegler was no longer living in the Forest County structure at the time of the hearing. On that basis, that court had ordered that Ziegler's nomination petitions for the May 19, 2015, primary election be set aside, which removed Ziegler from the ballot for that election. In his PCRA petition, Black contended that Ziegler's removal from the ballot in the 2015 election retroactively rendered her entire tenure as District Attorney of Forest County null and void, and that all convictions under her tenure, including in his case, should be set aside on that basis.

         The PCRA court appointed Joan M. Fairchild, Esq., to represent Black. She subsequently filed a petition for leave to withdraw and an accompanying "no-merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) (en banc). The PCRA court granted Fairchild's request and dismissed Black's petition. (ECF No. 8, Ex. B).

         Black filed an appeal with the Superior Court of Pennsylvania. On August 4, 2016, the Superior Court issued a memorandum in which it affirmed the PCRA's court decision. (ECF No. 8, Ex. C). Black did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania. (ECF No. 8, Ex. D). Accordingly, his PCRA proceeding concluded on or around September 5, 2016, when the time for him to do so expired. Pa.R.A.P. 1113(a); Lawrence v. Florida, 549 U.S. 327, 331-36 (2007); Swartz v. Meyers, 204 F.3d 417, 420-21 (3d Cir. 2000).

         Black filed his petition in his case, at the very earliest, on November 7, 2017, which is the date he placed it in the prisoner mailing system. He claims, as he did in the PCRA proceeding, that Ziegler was not eligible to prosecute him. He also claims that his trial counsel provided him with ineffective assistance.[1] (ECF No. 1 at 16-19).

         In their motion to dismiss (ECF No. 8), the Respondents contend that Black's claims must be denied because they are untimely under AEDPA's one-year statute of limitations, which is set forth at 28 U.S.C. § 2244(d)(1). Black did not file a reply. Local Rule 2254.E.2 ("Although not required, the petitioner may file a Reply (also known as "a Traverse") within 30 days of the date the respondent files its Answer.")

         B. ...


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