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Fahey v. Gilmore

United States District Court, W.D. Pennsylvania

June 25, 2018

WARREN FAHEY, Petitioner,
v.
ROBERT GILMORE, et al., Respondents.

          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. 18) be granted, that the claims raised in the petition for a writ of habeas corpus (ECF No. 5) filed by Warren Fahey (the "Petitioner") be dismissed with prejudice, and that a certificate of appealability be denied with respect to all claims.

         II. REPORT

         A. Relevant Background[1]

         In 2014, the Petitioner was the defendant in several criminal cases before the Court of Common Pleas of Erie County. He faced multiple counts of driving under the influence of alcohol or a controlled substance ("DUI"), and related offenses. He was represented initially by John Bonanti, Esq., but on May 12, 2014, the court granted Attorney Bonanti "and all members of the Erie County Public Defenders' Office" leave to withdraw. (SCR No. 23). The Petitioner waived his right to counsel and on May 22, 2014, he entered guilty pleas to multiple counts of DUI and other counts were nolle prossed. The court sentenced him that same day. It expressly advised the Petitioner that he had thirty days to file an appeal with the Superior Court of Pennsylvania. (Plea and Sent. Hr'g Tr., 5/22/14, at 24). The court also advised him that he had a right to an attorney to represent him on appeal and that he could move for the court to appoint him one. (Id. at 25).[2]

         The Petitioner did not pursue a direct appeal.[3] Instead, on June 2, 2014, he filed a pro se petition for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. (SCR No. 35). He contended that Attorney Bonanti provided him with ineffective assistance when he was his counsel and that his guilty plea was coerced. The Petitioner explained that he was not trying to withdraw his guilty pleas, but that he was "just stating" his belief that he would receive concurrent sentences. (Id. at 3).

         The PCRA court appointed William J. Hathaway, Esq., to represent the Petitioner. Attorney Hathaway 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). (SCR Nos. 42, 43). On July 24, 2014, the PCRA court granted Attorney Hathaway's request to withdraw and issued an opinion in which it notified the Petitioner that it intended to dismiss his petition because his claims had no merit. (SCR No. 44). The Petitioner, now proceeding pro se, filed a response to the court's notice. (SCR No. 45). On August 19, 2014, the court issued the final order dismissing his PCRA petition. (SCR No. 46). In that order, the court advised the Petitioner that he had thirty days to file an appeal with the Superior Court. The Petitioner subsequently filed with the PCRA court "multiple prolix motions, including two identical petitions seeking reconsideration of his sentence[, ]" but he did not file an appeal with the Superior Court. Commonwealth v. Fahey, No. 175 WDA 2015, 2015 WL 6681298, slip op. at *1 (Pa.Super.Ct. Aug. 19, 2015). On October 8, 2014, the PCRA court issued an order in which it explained that "[b]ased upon [the Petitioner's] abuse of the system, which includes the recycling of motions that were previously addressed, the Erie County Clerk of Courts is DIRECTED not to accept any further filings related to these cases without permission of the Court." (SCR No. 51).

         On December 10, 2014, the Petitioner filed with the PCRA court a motion seeking the reinstatement of his right to file an appeal from that court's August 19, 2014, final order that denied him collateral relief. Fahey, No. 175 WDA 2015, 2015 WL 6681298, slip op. at *1. The PCRA court denied the Petitioner's request in January 2015. Id. The Petitioner filed an appeal of that order with the Superior Court in which he contended that the PCRA court erred in denying his request to reinstate his PCRA appeal rights "without a hearing to determine [his] competence to follow rules of procedure[.]" Id. at *2 (quoting the Petitioner's Brief at 4).

         On August 19, 2015, the Superior Court issued a memorandum in which it affirmed the PCRA court's decision not to reinstate the Petitioner's PCRA appeal rights. It explained that "[i]t has long been recognized that the reinstatement of appeal rights is permitted only in 'extraordinary' circumstances[, ]" id. (quoting Commonwealth v. Stock, 679 A.2d 760, 764 (Pa. Super. Ct. 1996)), and that the Petitioner failed to make such a showing. Id. at 3. It held:

[The Petitioner] does not allege a breakdown in the operation of the court; his only claim is that he was unable to abide by the applicable rules and deadlines because of mental disabilities. [The Petitioner's] Brief at 10. This alone does not rise to the level of 'extraordinary circumstances' so as to permit the reinstatement of appellate rights nunc pro tunc. [Commonwealth v. Williams, 893 A.2d 147, 150 (Pa. Super. Ct. 2006)]. Moreover, although not germane to whether [the Petitioner] has met the "extraordinary circumstances" standard, we note that [he] has demonstrated his ability to abide by the applicable rules and procedures. For instance, he filed a timely pro se response to the PCRA court's Rule 907 notice of intent to dismiss, which, although verbose, coherently responds to PCRA counsel's Turner/Finley letter and cites Pennsylvania case law, treatises, and rules of court in support of his position. See Response to Rule 907 Notice, 8/7/14.

Id. The Petitioner did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania.

         Almost a year and a half later, on January 23, 2017, the Petitioner filed another PCRA petition. (SCR No. 80). On February 1, 2017, the PCRA court issued an order striking it "as an impermissive filing pursuant to [its] October 4, 2014, Order requiring [the Petitioner] to obtain permission of the Court prior to filing any motions." (SCR No. 81). The Petitioner then filed a motion for permission to file another PCRA motion, which the PCRA court denied on February 21, 2017. (ECF No. 83).

         Next, the Petitioner filed with this Court a petition for a writ of habeas corpus (ECF No. 5) pursuant to 28 U.S.C. § 2254, which is the federal habeas statute applicable to state prisoners. It permits a federal court to entertain an application for habeas corpus relief from a state prisoner, in relevant part, "only on the ground that he or she is in custody in violation of the Constitution…of the United States." 28 U.S.C. § 2254(a). In Ground One, he claims he entitled to habeas relief because of "hearsay" and in support contends that "officers['] testimony and or evidence cannot be supported without video coverage of going through traffic lights and swerving[.]" (ECF No. 5 at 5). In Ground Two, the Petitioner claims ...


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