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Gonzalez v. Gurman

United States District Court, E.D. Pennsylvania

June 28, 2018

DANIEL JOSHUA GONZALEZ, Petitioner,
v.
MARK GURMAN, et al., Respondents.

          REPORT AND RECOMMENDATION

          LINDA K. CARACAPPA UNITED STATES CHIEF MAGISTRATE JUDGE.

         Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the Federal Correctional Institution Rockview in Bellefonte, Pennsylvania. For the following reasons, it is recommended that the petition be DISMISSED.

         I. PROCEDURAL HISTORY

         On June 17, 2014, following a jury trial presided over by the Honorable Donald R. Totaro of the Court of Common Pleas of Lancaster County petitioner was convicted of aggravated assault and conspiracy. See CP-36-CR-0005599-2013. Specifically, petitioner was convicted of punching and kicking the victim, Tyron Sheppard, in the head, rendering him unconscious and then slashing the victim's face and neck area with an edged weapon. See PCRA Court Opinion, 10/19/17, at 1; Resp. to Habeas Pet., 5/25/18, Ex. UU. Petitioner was sentenced to a term of not less than ten (10) years nor more than twenty (20) years imprisonment on the aggravated assault conviction and a consecutive term of not less than ten (10) years nor more than twenty (20) years imprisonment on the conspiracy conviction. See CP-36-CR-0005599-2013.

         On August 29, 2014, trial counsel filed a post-sentence motion, arguing that the deadly weapon enhancement contained in the sentencing guidelines was unconstitutional. See Resp. to Habeas Pet., 5/25/18, Exhibit F. On September 16, 2014, the trial court denied petitioner's post-sentence motion. See id. at Ex. H. On September 30, 2014, trial counsel filed a direct appeal raising the same claim. See id. at Ex I and J.

         On October 29, 2014, while petitioner's direct appeal was pending, petitioner filed a timely pro se petition for collateral review under the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541, et seq, alleging trial counsel ineffective assistance. On November 5, 2014, trial counsel informed petitioner that if petitioner wished to pursue trial counsel ineffective assistance claims in the pro se PCRA petition, petitioner would have to discontinue the pending direct appeal that counsel had filed on petitioner's behalf. See Resp. to Habeas Pet., 5/25/18, Ex. L, Motion to Discontinue Appeal. Petitioner thereafter signed a motion to discontinue the direct appeal. See id. On November 25, 2014, the Superior Court granted the motion to discontinue the direct appeal. See id. at Ex. M.

         On December 3, 2014, the PCRA court dismissed petitioner's pro se PCRA petition without prejudice, noting that the court lacked jurisdiction over the PCRA petition because it was filed during the pendency of a direct appeal. See id. at Ex. P. On January 15, 2015, petitioner refiled his pro se PCRA petition.[1] See id. at Ex. Q, PCRA Petition. Counsel was appointed, and counsel filed an amended PCRA petition. Counsel alleged that petitioner was denied his right to a direct appeal due to the ineffective assistance of trial counsel, who failed to explain the legal consequences of the withdrawal and discontinuance of petitioner's direct appeal. Counsel requested reinstatement of petitioner's direct appeal right, nunc pro tunc. See id. at Ex. R, Amended PCRA Petition.

         On August 24, 2015, the PCRA court denied petitioner's petition as meritless. On June 22, 2016, the Superior Court affirmed the dismissal. See Commonwealth v. Gonzalez, No. 1629 MDA 2015, (Pa. Super. June 22, 2016); Resp. to Habeas Pet., 5/25/18, Ex. DD. Petitioner did not petition for allowance of appeal in the Pennsylvania Supreme Court. Petitioner subsequently filed various motions in the Court of Common Pleas of Lancaster County and the Supreme Court of Pennsylvania, which were denied.

         On July 17, 2017, petitioner filed a second pro se PCRA petition, and on August 30, 2017, the PCRA court dismissed the petition as untimely under the one-year statute of limitation. See Resp. to Habeas Pet., 5/25/18, Exs. RR, SS, and UU. On September 12, 2017, petitioner appealed pro se to the Superior Court. On October 18, 2017, petitioner withdrew and discontinued his appeal. See id. at Ex. VV.

         On December 25, 2017, petitioner filed the instant pro se petition for Writ of Habeas Corpus.[2] Petitioner raises the following three (3) grounds for relief:

1) Petitioner was denied his right to direct appeal from the judgment of sentence by the ineffective assistance of his trial counsel who failed to explain the legal consequence of the withdrawal and discontinuance of his direct appeal, and properly colloquy [petitioner] on the record to assure that [petitioner] knowingly and intelligently waived his appeal right;
2) PCRA counsel rendered ineffective assistance of counsel by failing to raise and litigate trial counsel's failure to challenge the sufficiency of the evidence to sustain the convictions in the present case; and
3) PCRA counsel rendered ineffective assistance of counsel by failing to raise and litigate trial counsel's failure to object to the court's sentencing petitioner with an applied deadly weapon enhancement pursuant to 204 PA. Code Ch. 303.9, where these statutes could not be applied pursuant to the requirements of the statute itself.

See Habeas Pet. at 20-22. Respondents contend the instant habeas petition is untimely, because it was not filed within the one-year habeas limitation period and does not meet the standard for equitable tolling. See Resp. to Habeas Pet. at 2-3. For the reasons that follow, we disagree and find the petition timely. However, we find petitioner's claim one is meritless and claims two and three are procedurally defaulted.

         II. TIMELINESS

         A strict one-year time limitation on the filing of new petitions is set forth in the federal habeas statute, 28 U.S.C. § 2241, et seq., which was amended under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), enacted on April 24, 1996. Under Section 2244(d)(1), the AEDPA provides:

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 for seeking such review;
(B) the date on which the impediment to filing an application created by state action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1) (1996).

         Here, petitioner's judgment of sentence became final on November 25, 2014, when petitioner discontinued his direct appeal with the Superior Court of Pennsylvania. See Clark v. Chester Cty., No. CIV.A 10-850, 2010 WL 2925713, at *3 (E.D. Pa. June 29, 2010) (noting conviction became final on date petitioner voluntarily discontinued appeal in Superior Court of Pennsylvania); McKeever v. McGrady, No. CIV.A. 09-3, 2011 WL 2295117, at *1 (W.D. Pa. May 20, 2011) (same); Commonwealth v. Conway, 706 A.2d 1243, 1244 (Pa. Super. Ct. 1997) (finding judgment of sentence became final when direct appeal was discontinued at appellant's request).

         As such, petitioner had until November 24, 2015 to file a timely federal habeas petition, unless the deadline was subject to statutory or equitable tolling.

         A. Stat ...


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