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Massey v. McGinley

United States District Court, W.D. Pennsylvania

July 5, 2019

JAYQUON MASSEY, Petitioner,
v.
TOM MCGINLEY, Respondent.

          MEMORANDUM OPINION [1]

          Lisa Pupo Lenihan United States Magistrate Judge.

         Pending before the Court is a Petition for Writ of Habeas Corpus (“the Petition”) filed by Petitioner Jayquon Massey (“Petitioner”) pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (ECF No. 17.) Petitioner, through counsel, challenges his judgment of sentence of life in prison without parole imposed following his conviction for first-degree murder and other related offenses. See Commonwealth v. Massey, CP-02-CR-0003771-2008 (Ct. Common Pleas Allegheny Cty.)[2] For the reasons stated herein, his Petition will be dismissed as untimely, and, in the alternative, denied.

         A. Factual and Procedural History

         The trial court set forth the facts of this case as follows:

. . . . The incident in question occurred on November 21, 2007, at approximately 6:15 PM at a bus stop on the north side area of the city of Pittsburgh. The victim was struck in the neck by a bullet fired by the defendant, while she and her boyfriend were walking from the bus stop with their Thanksgiving groceries. The defendant had fired at a burgundy SUV that had driven by. The general facts are as follows: The defendant would visit this north side neighborhood on a daily basis because his girlfriend at the time had lived there. The defendant knew the victim as well as the victim's children, given his testimony that the victim was his cousins' mom. The defendant on the day prior to the incident had been in this neighborhood with a friend and was robbed at gunpoint by unidentified persons in a burgundy SUV. The following evening (November 21, 2007) the defendant was again in this north side neighborhood. The victim's 14-year-old son had observed and encountered the defendant in the neighborhood every day, and on the night of the incident he observed a burgundy Escalade which he had seen the last several days in the area. He testified that the driver of the burgundy Escalade at some point got out of the vehicle and was taunting the defendant. The 14-year-old also testified that after the vehicle had passed, the defendant was in the middle of the street trying to shoot at the vehicle. The witness testified that the defendant had said his gun had jammed and did not discharge. At one point, the defendant asked to use his cell phone. The defendant denied the allegations that he attempted to shoot at the vehicle while standing in the middle of the street or that the gun had jammed. Subsequently, when the vehicle passed again the defendant fired shots that ultimately struck the innocent victim across the street. Various witnesses testified that they heard multiple shots fired. Their recollections varied from four to six shots. The Pittsburgh Police recovered two .38 caliber shell casings from where the defendant was believed to be standing in a grassy area. The defense contended that the victim's son had given him the gun, and the defendant had initially pointed it at the SUV in an attempt to scare them away. When the vehicle returned, the defendant testified that an arm protruded from the vehicle with a gun pointed at him. At that time the defendant shot twice. No. other witnesses observed the arm with a gun from the Escalade window.

(Resp't Ex. 6, Tr. Ct. Op. dated 7/30/09, ECF No. 22-1, pp.28-30.)

         Petitioner was charged by criminal information filed in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division with having committed one count each of Criminal Homicide, 18 Pa. C.S.A. § 2501; Firearms Not to be Carried without a License, 18 Pa. C.S.A. § 6106; and Recklessly Endangering Another Person (“REAP”), 18 Pa. C.S.A. § 2705. (Resp't Ex. 2, Criminal Information, ECF No. 22-1, pp.15-18.) Petitioner, through counsel, sought recusal of all judges of Allegheny County as the homicide victim, Ms. Cheryl Wilds, was an Allegheny County court reporter who had served in each of the judges' courtrooms. (Resp't Ex. 1, Docket Sheet, ECF No. 22-1, p.4.) The Honorable Jeffrey Manning recused himself from the case, and it was subsequently assigned to the Honorable John K. Reilly (“the trial court”).

         On October 14, 2008, the trial court issued an order granting special relief directing “[a]ny and all employees of Allegheny County Courthouse . . . to immediately remove any and all posters, photographs or otherwise of [the victim] from Courthouse walls, bulletin boards, and the like.” Id., p.5.

         At trial, which began on October 20, 2008, Petitioner was represented by Noah Geary, Esq., and Deputy District Attorney Bruce Beemer represented the Commonwealth. On October 23, 2008, at the close of all the evidence, Petitioner was adjudged guilty of first-degree murder and the other two offenses. (Resp't Ex. 3, Verdict, ECF No. 22-1, p.19.) On December 19, 2008, the trial court sentenced Petitioner to a mandatory sentence of life without parole for first-degree murder and a concurrent two to four years of incarceration for the firearms violation. He received no further penalty for the REAP offense. (Resp't Ex. 4, Sentencing Order, ECF No. 22-1, pp.20-21.)

         Petitioner filed a timely pro se appeal to the Superior Court of Pennsylvania, which was docketed at 608 WDA 2009.[3] (Resp't Ex. 5, Appeal Docket Sheet, ECF No. 22-1, pp.22-25.) The trial court issued its Pa. R.A.P. 1925(a) Opinion on July 30, 2009, and, on August 27, 2009, Judge Manning issued a separate Opinion regarding his ruling on Petitioner's pre-trial recusal motion. (Resp't Ex. 6, Tr. Ct. Op. dated 7/30/09, ECF No. 22-1, pp. 26-33; Resp't Ex. 7, Op. dated 8/27/09, ECF No. 22-1, pp.34-37.) Following briefing (Resp't Ex. 8, Br. for Appellant, ECF No. 22-2; Resp't Ex. 9, Br. for Appellee, ECF No. 22-3, pp.1-30), the Pennsylvania Superior Court affirmed Petitioner's judgment of sentence on February 24, 2011. (Resp't Ex. 10, Memorandum dated 2/24/11, ECF No. 22-3, pp.31-39.) A Petition for Reargument/Reconsideration en banc (Resp't Ex. 11, Petition, ECF No. 22-3, pp.40-54) was denied on May 6, 2011, (Resp't Ex. 12, Order, ECF No. 22-3, p.55).

         On June 3, 2011, Petitioner, through Attorney Debbis, filed a timely Petition for Allowance of Appeal (“PAA”) to the Supreme Court of Pennsylvania, which was docketed at 286 WAL 2011. (Resp't Ex. 13, Appeal Docket Sheet, ECF No. 22-4, pp.1-3; Resp't Ex. 14, PAA, ECF No. 22-4, pp.4-35.) In response, the Commonwealth filed a “No Answer Letter” on June 6, 2011 (Resp't Ex. 15, No. Answer Letter, ECF No. 22-4, p.36), and the court denied the PAA on October 14, 2011, (Resp't Ex. 16, Order, ECF No. 22-4, p.37). Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.

         Next, on September 12, 2012, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”). (Resp't Ex. 17a, PCRA Petition, ECF No. 22-5, pp.1-12.) Scott Coffey, Esq., who was appointed to represent Petitioner for post-conviction proceedings, filed an Amended PCRA Petition on March 14, 2013. (Resp't Ex. 17b, Amended PCRA Petition, ECF No. 22-5, pp.13-37.) The Commonwealth filed their Answer on May 1, 2013. (Resp't Ex. 18, Answer, ECF No. 22-6, pp.1-25.) Judge Beth A. Lazzara (“the PCRA court”)[4]issued her Notice of Intent to Dismiss the Amended PCRA Petition on September 22, 2014, (Resp't Ex. 19, Order dated 9/19/14, ECF No. 22-6, p.26), and she issued the PCRA court's Order denying the Petition on October 10, 2014, (Resp't Ex. 20, Order dated 10/10/14; ECF No. 22-6, p.27).

         Petitioner filed a timely appeal to the Superior Court of Pennsylvania, which was docketed at 1752 WDA 2014. (Resp't Ex. 21, Appeal Docket Sheet, ECF No. 22-6, pp.28-31.) The PCRA court issued its Pa. R.A.P. 1925(a) Opinion on January 21, 2015. (Resp't Ex. 22, Op. dated 1/21/15, ECF No. 22-6, pp.32-41.) Petitioner, through Attorney Coffey, filed his Brief on February 18, 2015, (Resp't Ex. 23, Br. for Appellant, ECF No. 22-7, pp.1-33), and the Commonwealth filed its Brief on March 18, 2015, (Resp't Ex. 24, Br. for Appellee, ECF No. 22-7, pp.34-61). On June 30, 2015, the Superior Court affirmed the PCRA court's order denying Petitioner post-conviction relief. (Resp't Ex. 25, Memorandum dated 06/30/15, ECF No. 22-7, pp.62-73.)

         Petitioner filed a PAA to the Pennsylvania Supreme Court, which was docketed at 255 WAL 2016. (Resp't Ex. 26, Appeal Docket Sheet, ECF No. 22-8, pp.1-3; Resp't Ex. 27, PAA, ECF No. 22-8, pp.4-38.) It was denied by the court on November 16, 2015. (Resp't Ex. 28, Order dated 11/16/15, ECF No. 22-8, p.39.) Petitioner did not seek certiorari in the United States Supreme Court.

         The original Petition for Writ of Habeas Corpus (“the original Petition”) in this case was filed by Petitioner, through counsel Craig M. Cooley, Esq., on March 24, 2016. (ECF No. 1.) On August 3, 2016, Petitioner, through counsel, filed an Amended Petition (“the Petition”), (ECF No. 17), and Respondent's filed their Answer to it on November 10, 2016, (ECF No. 22).

         B. Statute of Limitations

         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 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, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section.

28 U.S.C. § 2244(d).

         The statute of limitations set out in § 2244(d)(1) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), cert denied, 543 U.S. 1067 (2005). In analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to section 2244(d)(2). Third, the court must determine whether any other statutory exceptions or equitable tolling should be applied on the facts presented.

         The parties do not appear to dispute that the “trigger date” for Petitioner's statute of limitations commenced on the date Petitioner's judgment of sentence became final by the conclusion of direct review. In this case, the Pennsylvania Superior Court affirmed Petitioner's judgment of sentence on February 24, 2011, and reargument was denied on May 6, 2011. Petitioner then filed a PAA with the Pennsylvania Supreme Court that was denied on October 14, 2011. He did not file a petition for writ of certiorari to the United States Supreme Court, so his judgment of sentence became final on January 12, 2012, when his opportunity to file such a petition expired. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review, including the time limit (90 days) for filing a writ of certiorari in the Supreme Court). Absent any tolling of the statute, Petitioner had one year from that date to file a timely habeas petition.

         As to the second inquiry, the one-year limitations period was tolled during the pendency of Petitioner's “properly filed” state post-conviction proceedings pursuant to section 2244(d)(2). Here, 243 days of Petitioner's statute of limitations expired before Petitioner sought collateral relief through a properly filed PCRA petition on September 12, 2012, which stopped the statute of limitations from running.[5] It was then tolled until the Pennsylvania Supreme Court denied Petitioner's PAA on November 16, 2015. The statute of limitations started to run the following day and ran for 128 days until counsel for Petitioner filed the original Petition in this Court on March 24, 2016.[6] In sum, a total of 371 days elapsed, and, therefore the original Petition was untimely filed by six days.[7]

         Having failed to meet AEDPA's one-year statute of limitations, the Petition can only be saved by application of the doctrine of equitable tolling. The United States Supreme Court has held that AEDPA's statute-of-limitations period “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled to equitable tolling only if he shows that: (1) he has been pursuing his rights diligently, [8] and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at 649. See also Ross, 712 F.3d at 798-804; United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013); Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). “This conjunctive standard requires showing both elements before we will permit tolling.” Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original).

         Counsel for Petitioner acknowledges that the original Petition was untimely filed but argues that Petitioner should get the benefit of equitable tolling. In support of this claim, counsel states that on March 8, 2016, he mailed to this Court, via standard USPS mail, a letter addressed to the Clerk of Court, the original Petition and a motion requesting an extension of time to file an amended petition. (ECF No. 17, ¶ 25.) The letter specified that the original Petition had to be filed on or before March 16, 2016. (ECF No. 17, ¶ 26.) Two days later, on March 10, 2016, counsel also emailed a copy of the original Petition and motion for extension of time to Assistant District Attorney Ronald Wabby informing him that he had mailed the pleadings to the Clerk's Office on March 8th. (ECF No. 17, ¶ 27.) On March 24, 2016, counsel called the Clerk's Office to inquire about the case number assigned to the case but was informed that the pleadings were never received. (ECF No. 17, ¶ 28.) After speaking with the Clerk's Office, counsel immediately called the ECF administrator and requested an ECF login username and password, which he received that same day. (ECF No. 17, ¶ 29.) As a result, counsel electronically filed the original Petition on March 24, 2016. Id.

         Counsel states that he has been a practicing attorney since 2005 and this is the first time his mailed pleadings have mysteriously disappeared on the way to the Clerk's Office. (ECF No. 17, ¶ 28, FN 5.) In support of his request for equitable tolling, counsel argues that not only did Petitioner diligently pursue his rights in state court, but he has also done so in federal court by retaining counsel with 121 days remaining to file his habeas petition. (ECF No. 17, ¶¶ 31-32.) Additionally, counsel states that he did not wait until the last minute to mail the habeas petition, but did so a week before the expiration of the statute of limitations. Id. He claims that the untimely filing was not the result of attorney error, miscalculation, inadequate research or governmental interference, but rather the result of the extraordinariness of the pleadings getting lost in the mail or disappearing once they reached the Court. (ECF No. 17, ¶¶ 33-34.)

         In his Amended Petition, counsel cites to Washington v. Ollison, No. C 06-4490, 2007 WL 1378013, at *3 (N.D. Cal. May 9, 2007), where the district court granted the petitioner equitable tolling for a petition that was never received because it was mailed to an incorrect address in Eureka, California. However, in that case, the petitioner produced evidence of the address he acquired for the courthouse from a directory that listed an incorrect address - a fitness/health club operated by a former magistrate judge who used to receive legal mail at that address. The district court specifically noted that while the “they lost my mail” argument usually will not succeed, it qualified as an extraordinary circumstance beyond the petitioner's control in that case because mailing the petition to the Eureka address found in the directory “was a reasonable choice for a non-lawyer” and because the petitioner “presented (a) a prison mail log showing that some mail was sent by him to th[e] court's Eureka branch in the relevant time period, (b) a third-party directory listing the Eureka address as a branch for th[e] district, (c) his inmate trust account statement showing postage for a heavy package being deducted from his account at the relevant time, and (d) contemporaneous inmate appeals complaining about the lost mail.” Id., at ¶ 3.

         Counsel also cites to McKinley v. McCollum, No. CIV-16-126-R, 2016 WL 2587287, at *2 (W.D. Okla. May 4, 2016), wherein the district court declined to adopt the magistrate judge's report and recommendation wherein the judge recommended that the court dismiss the petitioner's habeas petition as untimely. The district court in McKinley remanded the matter to the magistrate judge for additional consideration regarding the petitioner's contention that he was entitled to equitable tolling since he provided evidence to support his claim that he placed his application for post-conviction relief in the prison mail but it was never received by the clerk of court. On remand, the magistrate judge specifically noted the evidentiary support that the petitioner provided to support his claim that he placed his application in the prison mail and found that he had met the standard for equitable tolling. 2016 WL 11469348 (W.D. Okla. May 25, 2016).

         “Courts are typically only willing to equitably toll the filing deadline when there is sufficient evidence that in fact the petitioner did timely mail his filing, thus making the claim of ‘lost mail' substantially more believable.” Johnson v. U.S., No. 10-CV-341, 2010 WL 2490694, at *3 (E.D. Wis. June 17, 2010) (citing Washington, supra, and Chapman v. Ricks, No. 9:03-CV-0171, 2008 WL 820189, at *7-8 (N.D.N.Y. Mar. 26, 2008)). In the cases cited by counsel, the petitioners presented such evidence. In this case, however, such evidence is lacking. While counsel for Petitioner has submitted an email that he sent to his secretary on March 8, 2016, attaching the pleadings and requesting that she mail them to the Federal Courthouse in Pittsburgh, he has not submitted evidence that she in fact mailed them on that day, or at all. (ECF No. 23-1, p.1.) This is not to say that she did not mail them. Indeed, the error very well could lie with the post office. Nevertheless, it was another error that occurred after the pleadings were mailed, which is an error that does in fact lie with counsel, that prevents this Court from finding a basis to grant equitable tolling. Specifically, it was not until March 24, 2016, almost two weeks after the statute of limitations had expired, and sixteen days after his secretary allegedly mailed the pleadings, that counsel called the Clerk's Office to confirm that they had been filed. The Third Circuit Court of Appeals has said that “[g]enerally, in a non-capital case . . ., “attorney error is not a sufficient bases for equitable tolling of the AEDPA's one-year period of limitation.” Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004) (citing Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002)); see also Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (recognizing that in non-capital cases, attorney error has not been found to rise to the extraordinary circumstances required for equitable tolling). Under the circumstances presented here, the Court is constrained to find that the Petition is time-barred because, without evidence that the original Petition was in fact mailed on March 8, 2016, the failure of counsel to inquire as to the filing of the original Petition until sixteen days after the statute of limitations had expired does not warrant equitable tolling. Nevertheless, out of an abundance of caution, the Court will proceed to review the claims in the Petition in the alternative.

         C. Applicable Standards

         1. 28 U.S.C. § 2254(d)

         Pursuant to the AEDPA, a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S. 362 (2000), discussed the analysis required by § 2254(d)(1):

[Under the “contrary to” clause], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id. at 1498. The Third Circuit Court of Appeals, consistent with the Williams v. Taylor interpretation, set forth in Matteo v. Superintendent, SCI-Albion, 171 F.3d 877 (3d Cir. 1999), cert. denied 528 U.S. 824 (1999), a two-tier approach to reviewing § 2254(d)(1) issues:

First, the federal habeas court must determine whether the state court decision was “contrary to” Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that “Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.” O'Brien [v. Dubois], 145 F.3d [16], 24-25 [1st Cir. 1998)]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an “unreasonable application” of Supreme Court precedent; that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted.

Id. at 891. The phrase “clearly established Federal law, ” as the term is used in Section 2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. ...


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