United States District Court, W.D. Pennsylvania
SCOTT A. BLACK, Petitioner,
SUPT. SCI GREENE, et al., Respondents.
Barry Fischer, District Judge
MAGISTRATE JUDGE'S REPORT AND
PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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.
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).
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).
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. (ECF No. 1 at 16-19).
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.")