United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
K. CARACAPPA UNITED STATES CHIEF MAGISTRATE JUDGE.
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
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
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.
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.
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. 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
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.
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.
December 25, 2017, petitioner filed the instant pro
se petition for Writ of Habeas Corpus. 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
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.
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).
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).
such, petitioner had until November 24, 2015 to file a timely
federal habeas petition, unless the deadline was subject to
statutory or equitable tolling.