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Westerfield v. Commonwealth

United States District Court, W.D. Pennsylvania

June 21, 2018

RONNY WESTERFIELD, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          MEMORANDUM AND SHOW CAUSE ORDER

          Lisa Pupo Lenihan United States Magistrate Judge.

         Before the Court is a Petition for Writ of Habeas Corpus filed by Ronny Westerfield (“Petitioner”) pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). He is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Fayette County on November 4, 2008.

         It appears to the Court that all of Petitioner's claims are subject to dismissal under AEDPA's one-year statute of limitations, which is codified at 28 U.S.C. § 2244(d). Respondents did not raise this issue in their Answer. Nevertheless, the Court may raise the issue sua sponte as long as Petitioner is given fair notice and an opportunity to respond and is not prejudiced. Day v. McDonough, 547 U.S. 198, 205-10 (2006); United States v. Bendolph, 409 F.3d 155, 161-70 (3d Cir. 2005) (en banc). See also Wood v. Milyard, ___ U.S. ___, 132 S.Ct. 1826, 1834 (2012). This Memorandum gives him the required notice. Pursuant to the attached Order, both parties are provided with the opportunity to set forth their positions regarding the statute of limitations. Petitioner in particular must show cause why his claims should not be dismissed for failure to meet the statutory deadline.

         A. Procedural Background

         Ronny Westerfield has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) challenging his judgment of sentence entered by the Court of Common Pleas of Fayette County on November 4, 2008, after he was found guilty of criminal attempted rape of a child, involuntary deviate sexual intercourse of a child, and corruption of minors, and sentenced to inter alia 16 to 32 years of incarceration.[1] (Rep't Ex. 2, ECF No. 26-2); see also Commonwealth v. Westerfield, CP-26-CR-0001990-2007 (Fayette County Com. Pl.).[2]

         Following the imposition of sentence, Petitioner filed a direct appeal challenging only the sufficiency of evidence to support his conviction. (Resp't Ex. 3, ECF No. 26-3.) On December 23, 2008, the Court of Common Pleas of Fayette County (“trial court”) issued an Opinion in Support of Verdicts. (Resp't Ex. 4, ECF No. 26-4.) In an unpublished Memorandum filed on June 17, 2009, the Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence. (Resp't Ex. 5, ECF No. 26-5); see also Commonwealth v. Westerfield, 981 A.2d 325 (Pa. Super. Ct. 2009) (Table). The Supreme Court of Pennsylvania denied Petitioner's Petition for Allowance of Appeal (“PAA”) on February 24, 2010. (Resp't Exs. 5(a) and 5(b), ECF Nos. 26-6, 26-7); see also Commonwealth v. Westerfield, 989 A.2d 917 (Pa. 2010) (Table).

         Petitioner filed a timely petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541, et seq., on or around September 15, 2010, raising only a single ground of ineffective assistance of counsel. (Resp't Ex. 6, ECF No. 26-8.) The trial court appointed counsel to represent Petitioner, but counsel moved to and was subsequently granted permission to withdraw after filing a no-merit letter in accordance with Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988). The trial court then issued an Order dated April 25, 2011, advising Petitioner of its intent to dismiss his PCRA petition on the basis that he failed to allege how his trial counsel was ineffective and giving Petitioner twenty (20) days in which to respond to the proposed dismissal in accordance with Pa. R. Crim. P. 907(1). (Resp't Ex. 7, ECF No. 26-9.) Petitioner did not respond to the trial court's Order and the trial court dismissed his PCRA petition without a hearing on May 17, 2011. (Resp't Ex. 8, ECF No. 26-10.) Petitioner then filed an appeal to the Superior Court, alleging that the trial court should not have dismissed his PCRA petition without a hearing and that it erred in finding that trial counsel was not ineffective. (Resp't Exs. 9, 10(a), ECF No. 26-11, 26-13.) In an unpublished Memorandum filed March 9, 2012, the Superior Court affirmed the dismissal of Petitioner's PCRA petition. (Resp't Ex. 10, ECF No. 26-12); see also Commonwealth v. Westerfield, 47 A.3d 1240 (Pa. Super. Ct. 2012) (Table).

         Petitioner filed a second PCRA petition on November 7, 2012, wherein he alleged a violation of due process, fraud by the public defender resulting in a miscarriage of justice, and a lack of subject matter jurisdiction by the trial court. (Resp't Exs. 11, 11(a), ECF Nos. 14, 15.) The trial court issued an Order dated November 27, 2012, advising Petitioner of its intent to dismiss the second PCRA petition as untimely and providing him with twenty (20) days to respond to the proposed dismissal in accordance with Pa. R. Crim. P. 907(1). (Resp't Ex. 12, ECF No. 26-16.) This time Petitioner responded to the trial court's Order, (Resp't Ex. 13, ECF No. 26-17), but the trial court still dismissed it without a hearing on December 13, 2012, (Resp't Ex. 14, ECF No. 26-18). Petitioner appealed the dismissal of his second PCRA petition, challenging the trial court's conclusion that it was untimely, as well as the substance of the petition. (Resp't Ex. 15, ECF No. 26-19.) In an unpublished Memorandum filed on March 3, 2015, the Superior Court concluded that Petitioner had waived any issue on appeal for having not timely filed a concise statement of issues on appeal in accordance with Pa. R.A.P. 1925, and, even if he had not, that the second PCRA petition was untimely, therefore affirming the dismissal of the second PCRA petition. (Res't Ex. 16, ECF No. 26-20.)

         In August 2014, Petitioner filed a “Motion to Correct Illegal Sentence” in which he alleged that the charge of involuntary deviate sexual intercourse with a child was withdrawn at his preliminary hearing and not properly re-filed. (Resp't Ex. 17, ECF No. 26-23.) In an Opinion and Order dated February 20, 2015, the trial court denied the Motion to Correct Illegal Sentence on the merits. (Resp't Ex. 18, ECF No. 26-24.) Petitioner appealed the denial of relief, and, in an unpublished Memorandum filed September 18, 2015, the Superior Court firstly determined that Petitioner's Motion to Correct Illegal Sentence was really a third PCRA petition and secondly denied the petition as untimely. (Resp't Ex. 19, ECF No. 26-25.)

         Pursuant to the prisoner mailbox rule, Petitioner instituted the instant habeas corpus proceedings on May 8, 2015.[3] Respondents filed their Answer to the Petition for Writ of Habeas Corpus on February 26, 2016 (ECF No. 26), and Petitioner filed a Response to the Answer on June 15, 2016 (ECF No. 36). Petitioner raises four claims in his Petition. In his first claim, Petitioner alleges ineffective assistance of counsel for failing to exercise due diligence in gathering information and calling witnesses he claims would have supported his defense. He also claims that counsel “conspired with the Commonwealth” to conceal the supposed fact that Petitioner lacked knowledge that the withdrawn charge of involuntary deviate sexual intercourse with a child, 18 Pa. C.S.A. § 3123(b), was re-refiled. Petitioner's remaining three claims arise from the same circumstances - the re-filing of the charge of involuntary deviate sexual intercourse with a child, 18 Pa. C.S.A. § 3123(b). He claims that the re-filing of the charge without his knowledge, and after it had been withdrawn at his preliminary hearing, constituted a violation of his due process rights, was a miscarriage of justice, and rendered his sentence for the charge illegal. (ECF No. 3.)

         B. Discussion

         AEDPA imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and it provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time ...

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