United States District Court, M.D. Pennsylvania
Mehalchick Magistrate Judge
D. Manani United States District Judge
before the Court is a Report and Recommendation
(“R&R”) (Doc. 29) from Magistrate Judge
Karoline Mehalchick, in which she recommends Petitioner's
28 U.S.C. § 2254 petition (Doc. 1) be dismissed with
prejudice. (Doc. 29 at 22.) The primary issue under
consideration is whether Petitioner is entitled to equitable
tolling of the one-year statute of limitations of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d). If
Petitioner's habeas action is deemed timely filed, the
Court must then determine whether he is entitled to
substantive relief. For the reasons discussed below, the
Court concludes that equitable tolling is appropriately. The
Court further concludes that Petitioner's 28 U.S.C.
§ 2254 Petition (Doc. 1) is properly granted on the
limited terms set out herein.
than the underlying incident summary and references to family
correspondence or declarations, the factual background set
out below is derived from the Declaration of Petitioner,
Shane David Risjan (Doc. 18-1 at 2-7) and exhibits attached
thereto (id. at 8-25), Respondent's Answer to
Petition for Writ of Habeas Corpus (Doc. 22),
Respondent's Brief in Opposition to Petition for Writ of
Habeas Corpus (Doc. 22-1), and attached exhibits (Doc. 22-2
March 11, 2009, Petitioner was convicted of involuntary
deviate sexual intercourse, indecent assault, indecent
exposure, and corruption of minors after a three-day jury
trial in the Dauphin County Court of Common Pleas. (Doc. 22-1
at 2; Doc. 22-2 at 3.) Petitioner's daughter, who was
nine-years-old at the time, was the victim of these crimes.
Petitioner alleges that his conviction was based on his own
coerced confession and the testimony of one witness. (Doc. 43
incident giving rise to his arrest and conviction occurred on
January 8, 2008. (Doc. 22-2 at 2.) Petitioner, his seven
children, and his grandparents had traveled from Waterford,
Pennsylvania, to Hershey, Pennsylvania, to attend the
Pennsylvania Farm Show and arrived at the Comfort Inn in
Hershey, Pennsylvania, on the evening of January
8th. (Doc. 43-1, Declaration of S. Risjan.) The
family was at the hotel pool with Petitioner and several of
his children in the water when a woman who was attending a
conference at the hotel, Stephanie Haynes, observed the pool
area through hallway windows. (Doc. 43 at 5 (citing N.T. at
81, 96-97, 205).) Ms. Haynes testified that she saw a man in
the pool with a young girl on his lap, and “it appeared
. . . she was extremely uncomfortable.” (Id.)
According to her testimony, the girl tried to struggle away
from Petitioner as he was pulling her through the pool with
his hands on her waist. (Id. (citing N.T. at
103-04).) Ms. Haynes reported the activity, which she
described as Petitioner having his hands around the girl, to
the front desk attendant, Kerri Frolich. (Id. at 6
(citing N.T. at 88-89, 107-08).) She said she reported the
conduct because she did not think it was appropriate physical
contact between a grown man and a small child. (Id.
(citing N.T. at 104).) Ms. Frolich alerted local authorities.
(Id. at 7 (citing N.T. at 138-39, 141).) Pursuant to
a subsequent radio dispatch which alerted to both a rape in
progress and allegations of oral sexual conduct, a police
officer and detective arrived at the scene. (Id.
(citing N.T. at 186, 194, 197).) After speaking with Ms.
Haynes, the detective, Gregory Day, asked Petitioner to
accompany him to a conference room where Day questioned
Petitioner. (Id. (citing N.T. at 165).) This is
where Petitioner asserts that his confession, which followed
denials of inappropriate conduct and consisted primarily of
one-word answers to questions posed by Day, was coerced by
threats that his daughter would be taken away. (Id.
at 9 (citing N.T. at 306, 378, 383-84, 389, 391-92, 412-13).)
Petitioner's daughter did not testify at the trial and
has continuously denied that any inappropriate conduct
occurred. (See, e.g., Doc. 9-1 at 1, Doc.
44 at 8-10.)
noted above, Petitioner was convicted on March 9, 2009.
See supra p. 2. He was sentenced on June 29, 2009 by
the Honorable Richard A. Lewis to 10-20 years in a state
correctional facility for the involuntary deviate sexual
intercourse count, 9-24 months concurrent for the indecent
assault charge, 3-23 months concurrent for the indecent
exposure charge, and 9-24 months for the corruption of minors
charge. (Doc. 22-1 at 2.) He was represented by J. Michael
Sheldon, Esquire, at trial. (Id.) No. post-sentence
motions were filed, and no direct appeal was filed.
roots of this habeas petition are based in the fact that
Sheldon did not file post-trial motions or an appeal whereas
Petitioner and his grandmother, Clara Risjan, (who was with
him at the time of the January 2008 incident, testified at
the trial, and communicated with Sheldon about the case)
believed that Sheldon continued to represent Petitioner
post-sentencing and had filed an appeal. Testimony later
adduced at hearings related to Petitioner's first
Post-Conviction Relief Act Petition (“PCRA I”)
filed on May 7, 2012, sheds light on the origin of
Sheldon's alleged belief that he was not expected to file
an appeal and Petitioner's belief his attorney would file
and had filed a timely appeal.
first PCRA Hearing was held by Judge Lewis on April 19, 2013.
(Doc. 22-7 at 8-34.) Petitioner and Sheldon testified at the
hearing. (Id. at 8.) Anthony A. Logue and James A.
Pitonyak appeared for Petitioner. (Id.) Jason E.
McMurry appeared for the Commonwealth. (Id.)
testified that he told Sheldon he wanted to appeal the
verdict when Sheldon visited him at the Dauphin County Prison
at some time after the verdict and before June 2009. (Doc.
22-7 at 13 (Tr. at 11:23-12:13).) Petitioner also instructed
his grandmother to let Sheldon know he wanted to appeal the
verdict. (Id. (Tr. at 14-17).) After the sentencing
on June 29, 2009, Petitioner did not get to see Sheldon but
testified that he told his grandmother to contact Sheldon and
tell him to start the appeal and she reported to him that he
had done so. (Id. (Tr. at 13:5-14).) Petitioner
further testified that, based on this information, he
believed Sheldon was handling his appeal. (Id. (Tr.
at 13:15-17).) The following exchange then occurred between
Logue and Petitioner:
[Logue]“After you told your grandmother to have
Attorney Sheldon file your appeal, did you have any further
communication with him either in person, by mail, by
telephone, any contact whatsoever?”
[Petitioner] After the sentencing?
(Id. (Tr. 13:18-25).)
testified that he met with the family after the verdict and
before sentencing but he did not remember meeting with
Petitioner. (Doc. 22-7 at 14 (Tr. at 18:7-13).) Sheldon
described his contact with the family after the verdict as
After the verdict I had been so emotionally involved in the
case, I went out into the lobby outside the courtroom and I
broke down in tears because I felt badly for Mr. Risjan. I
felt badly for the sentence that I knew was coming and I told
the family at that point in time that I didn't feel
capable, if they were planning to appeal it, to handle any
appeal, that they needed a new fresh set of eyes.
(Id. (Tr. 18:16-24).) McMurry then stated: “So
safe to say, you informed them the day he was convicted that
you would not pursue an appeal in this matter on behalf of
Mr. Risjan?” (Id. (Tr. 18:25-19:2).) Sheldon
responded: “Absolutely. I didn't feel confident to
do so. I was emotionally just broken down.”
(Id. (Tr. at 19:3-4).)
did not recall visiting with Petitioner at the prison between
the verdict and sentencing but said “I am not saying
that I didn't” (id. at 16 (Tr. at
24:2-3)), “”I may or may not have been
there” (id. (Tr. at 25:12-13)). He did not
recall having a conversation with Petitioner during this time
about the appeal:
I don't recall that conversation because I made it clear
to the family and if I did meet with Mr. Risjan, I would have
made it clear to him that I didn't feel capable of
handling the appeal and send him to another attorney.
But I was doing primary conversations with his grandmother.
They were the ones talking with me mostly. Those were the
people that I probably talked with. I do not remember talking
to Mr. Risjan between the date of verdict and date of
(Doc. 22-7 at 16 (Tr. at 25:20-26:5).)
testified that he did not recall having any conversations
with Petitioner or his family after the sentence.
(Id. (Tr. at 19:17-19).) When asked about receiving
correspondence, he stated that Petitioner and his family
would send him things “periodically throughout the
case, . . . bible quotes.” (Id. (Tr. at
19:23-25).) He clarified that the time frame he was referring
to was before the trial. (Id. at 15 (Tr. at
20:3-4).) When asked if he had ever given the family the
impression that he would handle the appeal, Sheldon responded
Absolutely at no time did I ever tell them that I would
handle the appeal, did I give them that impression. If
anything, I specifically told the family on the date of the
verdict that I would not be handling the appeal and I
recommended another attorney and told them that I would take
the file to that attorney personally.
(Doc. 22-7 at 15 (Tr. at 21:1-7).) He identified the other
attorney as Bill Costopoulos and added “I made it very
clear to Miss Risjan on the day of the verdict that I would
not be handling an appeal. That's it.”
(Id. (Tr. at 21:9, 22:1-3).)
cross-examination by Pitonyak, Sheldon confirmed that he
never formally withdrew his representation of Petitioner and
never filed a motion to do so. (Id. (Tr. at
22:20-23, 23:15-18).) Sheldon did not dispute that his name
remained on the docket up until the time that Attorneys Logue
and Pitonyak entered their appearance. (Id. (Tr. at
23:7-14).) Sheldon testified that his representation ceased
after sentencing according to the fee agreement.
(Id. (Tr. at 23:3-6).) When asked whether he ever
visited Petitioner after sentencing to advise him about the
necessity of getting an appeal filed and getting someone else
to file an appeal, Sheldon responded that he did not remember
going to see him. (Id. at 15-16 (Tr. at
correspondence from Ms. Risjan to Sheldon between the verdict
and sentencing, Sheldon first responded that he did not
know-he had sent his file to Attorneys Pitonyak and Logue in
August 2011. (Id. at 16 (Tr. at 6-14).) Sheldon then
addressed a specific letter in which Ms. Risjan discussed
filing an appeal and said he believed she was asking him to
consider remaining on the case. (Id. (Tr. at 26:
6-23).) When asked whether he had responded to the letter in
any way indicating that he would not be filing an appeal and
making sure that she had someone representing Petitioner to
secure his appellate rights, Sheldon responded that
I probably did out of concern for Shane and his appellate
rights. I made it clear to her on the day of the verdict that
she has a limited amount of time after sentencing in order to
do something, to retain an attorney. If there is a letter you
have it. You have the entire file.
(Doc. 22-7 at 17 (Tr. at 28:23-29:3).) Sheldon stated that he
did not remember follow-up calls from Ms. Risjan due to a
lack of response to the letter. However, he did remember
calls from her on another subject but did not remember when
he got those calls because it was almost four years before
the hearing and he “didn't keep records of who
called what hour, what day.” (Id. (Tr. at
phone calls from Ms. Risjan after sentencing, Sheldon said
that she had called asking for the entire file but that was
well past any appellate and PCRA time, adding “[i]n
fact, she was calling me to ask me for the entire file, I
think for Attorney Logue and I don't feel comfortable
releasing a file to a relative.” (Id. at 16-17
(Tr. at 27:16-28:1).) Sheldon concluded that phone calls, or
a claim to have made phone calls, would not make sense
because Ms. Risjan's letter asking him to consider
remaining on the case indicated that she knew he did not want
to be part of any appellate process. (Id. at 17 (Tr.
exhibit was entered at the hearing: a letter dated March 20,
2009, from Clara Risjan which Petitioner's counsel had
obtained from Sheldon's file. (Doc. 22-7 at 18 (Tr. at
second PCRA Hearing was held by Judge Lewis on September 6,
2013. (Doc. 22-7 at 2-7.) Clara Risjan and Attorneys Logue
and Pitonyak appeared by video from Erie. (Doc. 22-7 at 3
(Tr. at 2:8).) Ms. Risjan testified that, after the verdict,
she was in the courthouse lobby when she told Sheldon the
family wanted him to appeal the verdict. (Doc. 22-7 at 3 (Tr.
at 4:32-5:22).) In answer to the question of whether Sheldon
ever told her “he didn't feel he was capable of
doing the appeal or he wanted a fresh set of eyes to look at
this other than him doing the appeal, ” Ms. Risjan
responded that he never told her that. (Id. at 3-4
(Tr. at 5:23-6:6).) Logue then asked if she had spoken with
Sheldon about costs of the appeal and Ms. Risjan said
“[t]he only thing that was said about costs at that
time was he said it would cost more, that we would have to
pay more to have the appeal. And I said I realize that and
that was okay with me.” (Id. at 4 (Tr. at
6:4-10).) Ms. Risjan stated that she did not talk with
Sheldon right after the sentencing because he had left
“right away, ” but she talked with him later that
day. (Id. (Tr. at 6:20-24).) She testified that she
reached Sheldon on his cell phone and she first asked him
what the verdict was, explaining that they were sitting far
back in the courtroom and could not hear. (Id. (Tr.
at 7:10-12).) Ms. Risjan said she then told him they wanted
him to take the appeal and Sheldon said that he would go over
all of his files and let them know. (Id. (Tr. at
14-20).) Upon questioning about whether Sheldon had brought
up the name of Bill Costopoulos, Ms. Risjan said she had
never heard of that name. (Id. (Tr. at 21-24).) Ms.
Risjan testified that she spoke with Sheldon once between the
verdict and sentencing at which time he spoke about the
unlikely success of an appeal and she told Sheldon it was
worth it even if the chance of success were just one percent.
(Id. (Tr. at 8:12-9:3).) She confirmed that Sheldon
never told them he would not be handling the appeal and she
expected to hear from him about a bill but did not.
(Id. (Tr. at 8:6-10).) When asked when she
discovered that Sheldon was not working on Petitioner's
appeal, Ms. Risjan answered as follows:
Well, it was probably about a year later. I still hadn't
received a bill from him. So I hadn't paid him any money
because he never told me the amount and he never told me
that, no, he wouldn't take it. So I believed that he was
working on the case. I believed that he was doing the appeal.
(Doc. 22-7 at 4 (Tr. at 9:7-13).) Ms. Risjan confirmed that
she was shocked when she found out that nobody was working on
an appeal, adding that she had never been involved in
anything like it so she didn't know how long it took and
she believed he was doing it until she didn't hear from
him and didn't answer her letter at which point she
thought they better look for another attorney. (Id.
(Tr. at 9:14-24).)
cross-examination, the attorney for the Commonwealth, Andrew
Jarbola, asked Ms. Risjan about the March 20, 2009, letter
discussed at the previous hearing and entered into evidence
where she said “I don't understand why you
can't be or don't want to be our attorney for the
appeal because you already know this case and I can't
believe you can't [sic] just forget about an innocent
man.” (Id. (Tr. at 11:17-21).) Ms. Risjan
testified that she did not remember everything she put in
that letter, adding “I know I would have asked him
about doing the appeal and if he would let us know.”
(Id. (Tr. at 11:23-12:1).) Jarbola then asked
whether Sheldon had told her on the day of the verdict that
“he was incapable of handling an appeal because of his
emotional involvement in the case and how hard he had tried
and what he was going to do is try to find another attorney
that could handle it? Did he tell you that?”
(Id. (Tr. at 13:2-8).) Because Ms. Risjan was unable
to hear Jarbola, Pitonyak repeated the question, asking
whether Sheldon told her on the date of the verdict
“that he didn't feel comfortable handling an appeal
because he was too emotionally involved in the case.”
(Id. (Tr. at 13:11-17).) She responded as follows:
No, he never even mentioned anything about emotionally
involved to me. He said that he would need some time to think
it over and like a couple of days or something and go back
over, go back over his file. But he never told me he
wouldn't do it or he didn't say no or anything like
that. He didn't say, no, I won't handle it.
(Id. (Tr. at 13:18-25).)
Petitioner's Declaration dated May 21, 2015, he stated
that he verbally requested Sheldon to file an appeal and
about two weeks after sentencing he sent him a letter
requesting to know the issues he planned on raising and asked
Sheldon to contact Petitioner's grandmother to work out
the necessary arrangements. (Doc. 18-1 at 2 ¶¶ 4,
5.) In September 2009 Petitioner contacted the Dauphin County
Clerk of Court to inquire about the status of his case
because he had not heard back from Sheldon and he had not
returned telephone messages left by his grandmother.
(Id. ¶ 6.) In correspondence dated November 3,
2009, the Clerk of the Court for Dauphin County responded to
Petitioner's correspondence and advised him that his
request could not be accommodated because:
Requests for information/copies must come from your attorney
Your motion/request has been sent to your attorney of record
as per rule 576(A)(4).
This office does not have or is unable to accommodate your
Comments: Pursuant to the Pennsylvania Rules of Appellate
Procedure, once an appeal is filed, all records are
transmitted to the Pennsylvania Superior Court. Any questions
you have concerning your case should be addressed to your
attorney of record, J. Michael Sheldon, Esq.
(Doc. 18-1 at 9 (emphasis in original).)
states that he sent Sheldon two separate letters as a result
of the Dauphin County Clerk's correspondence and in both
the November and December 2009 letters he inquired about the
status of his appeal and the reasons why Sheldon had not
communicated with him or his grandmother. (Doc. 18-1 at 3
¶ 8.) Sheldon responded with correspondence dated
February 8, 2010. (Doc. 18-1 at 11.) The body of the
correspondence states, in total: “In response to your
letters dated November 10, 2010, [sic] and December 14, 2010,
[sic] you should refrain from communicating directly with the
courts. As your attorney of record, all questions you have
concerning your case should be forwarded directly to
the period following receipt of Sheldon's letter,
Petitioner makes the following assertions:
[b]elieving that Attorney Sheldon was, in fact, working on my
appeal, in March, April and May of 2010, I again wrote
Attorney Sheldon and requested to know the status of my
. . . In June, 2010, after receiving no response from
Attorney Sheldon, I requested my grandmother to contact
Attorney Sheldon directly, inquire as to the status of my
appeal, and obtain a copy of the appeal papers Attorney
Sheldon filed on my behalf.
. . . In July, 2010, after learning from my grandmother that
Attorney Sheldon would not provide her with any file material
relating to my case, I again wrote Attorney Sheldon and
requested that he provide the appeal papers he filed on my
behalf directly to me.
. . . In September, 2010, after receiving no response from
Attorney Sheldon, I wrote to the Pennsylvania Superior Court,
explained the difficulties I was experiencing in
communicating with Attorney Sheldon. I also requested that I
be provided with a copy of the appeal papers Attorney Sheldon
had filed on my behalf.
(Doc. 18-1 at 3-4 ¶¶ 10-13.) The Superior Court
provided a written response dated October 5, 2010, which
stated the following:
This office is in receipt of your correspondence of September
13, 2010, in which you request a copy of documents filed on
your behalf by your attorney, J. Michael Sheldon, Esq.
Any request for a copy of appellate briefs filed on your
behalf should be made directly to Attorney Sheldon.
(Doc. 18-1 at 13.) Sheldon was copied on the letter.
says that, upon receipt of the letter from the Superior
Court's Prothonotary's Office, he immediately
contacted Sheldon in writing “demanding” that
Petitioner be advised of the status of his appeal, provide
him or his grandmother with a copy of the brief filed on his
behalf, and, if Sheldon was not going to do this, “he
should do whatever he needed to do to have a new attorney
take over [the] case.” (Doc. 18-1 at 4 ¶ 15.) On
December 12, 2010, Sheldon wrote to Petitioner:
As I stated in previous correspondences, you should refrain
from communicating directly with the courts concerning your
case. Any questions you have should be sent to me.
If it is your desire to retain new counsel to take over your
case, you should instruct new counsel to contact me to
arrange retrieval of you file.
(Doc. 18-1 at 15.)
states that he was unsure how to proceed after receiving this
letter and, from January through March 2011, he attempted to
contact a number of attorneys to take over his case.
(Id. at 4 ¶ 17.) Having been unsuccessful, in
April 2011 Petitioner asked his grandmother to see if she
could find someone. (Id. ¶ 18.) Petitioner
states that “[i]n May, 2011, upon learning from my
grandmother that Attorney Sheldon failed to file an appeal on
my behalf, I authorized my grandmother to retain the services
of private counsel, Anthony Logue and James Pitonyak.”
(Id. ¶ 19.)
cross-examination at the first PCRA hearing, McMurry asked
Petitioner when he learned that no appeal had been filed on
his behalf. (Doc. 22-7 at 13 (Tr. at 14:12-13.) The following
exchange then occurred:
[Petitioner] When a letter was sent back to, I believe it was
my grandmother from Mr. Sheldon stating that he did not want
to handle it and gave names of a couple other guys in that
[McMurry] Mr. Sheldon told you or told your grandmother that
he did not want to do the appeal?
[McMurry] Do you recall when that was?
[Petitioner] No. No, sir, I don't.
[McMurry] Can you give me an approximation on it, 30 days
after you were sentenced, 45, month, two months?
[Petitioner] Not really.
[McMurry] What did you do after you learned that Mr. Sheldon
did not want to appeal your case?
[Petitioner] I instructed my grandparents to try to find
somebody else to take it.
When did that occur? Do you recall a time frame on that?
[Petitioner] I am going to say late 2010, early '11.
[McMurry] When did you retain Mr. Logue's services?
[Logue] I can answer that. I think we entered an appearance
in August of 2011. That's probably part of the record.
[McMurry] So what efforts did you make to appeal your case
before 2010, 2011?
[Petitioner] It was through my grandparents contacting an
[McMurry] Did your grandparents contact another attorney?
[Petitioner] Yes, they did. They did contact another one and
[McMurry] What do you mean by denied?
[Petitioner] He did not want to take the case.
[McMurry] Do you know who that was?
[Petitioner] I believe it was Ridge.
[McMurry] Do you know when that was?
[Petitioner] Probably March, April of 2011.
(Doc. 22-7 at 13-14 (Tr. 14:14-16:5).)
2, 2011, Ms. Risjan signed a Fee Agreement in which she
retained Attorneys Logue and Pitonyak (with Petitioner's
permission) to provide representation with respect to the
“Criminal Appeal for Shane David Risjan” for the
sum of $30, 000. (Doc. 18-1 at 5 ¶ 19; 17.) Petitioner
said that they were retained “for the exclusive purpose
of filing a state court PCRA petition, seeking reinstatement
of . . . state court appellate rights.” (Id.
¶ 20.) Petitioner further avers that Logue and Pitonyak
represented to him that a PCRA petition “would and had
been filed within 60 days of learning that his trial counsel,
Attorney Sheldon, had failed to file requested state court
appeal on his behalf.” (Id. ¶ 21.)
7, 2012, Petitioner's attorneys filed “Petition
Pursuant to Post-Conviction Relief Act/Motion for
Post-Conviction Collateral Relief/Motion for Writ of Habeas
Corpus” (“PCRA I”). (Doc. 22-4.) The filing
included five claims of ineffective assistance of trial
counsel (Doc. 22-4 at 4-8), one of which contains six
subparts (id. at 8). It also included a request for
habeas corpus consideration based on the same facts as the
ineffective assistance of counsel claims. (Id. at
9.) In the Relief Requested section of the filing, Petitioner
stated the following:
Due to ineffective assistance of trial counsel, Defendant
would respectfully request that this Honorable Court
reinstate Defendant's post-sentencing and appellate
rights, grant him a new trial, or, hold an Evidentiary
Hearing pursuant to the PCRA Petition; or in the alternative,
grant him a hearing relative to his Motion for Writ of Habeas
(Doc. 22-4 at 10.) The Petition did not discuss the filing
requirements for a PCRA petition found in 42 Pa. C.S.A.
§ 9545(b) nor did the petition seek an exception to the
normal requirement that the petition be filed within one year
of the date the judgment becomes final as set out in §
17, 2014, Judge Lewis issued his Memorandum Opinion and Final
Order addressing the May 7, 2012, filing. (Doc. 22-5.) Judge
Lewis noted that, “[a]lthough the petition appeared
untimely on its face, out of an abundance of caution, this
Court held two evidentiary hearings to ensure a thorough
review of Petitioner's serious claims.” (Doc. 22-5
at 4.) No. claim was specifically reviewed, but PCRA hearing
testimony was referenced and summarized. (Id. at
4-6.) Judge Lewis then stated the following:
Despite the contentions presented during the Hearings, this
Court believes that the case of Commonwealth v.
Hall, [771 A.2d 1232 (Pa. 2001), ] is factually on point
and controls our determination that we are without
jurisdiction to consider the merits of Petitioner's PCRA
claims as his petition was untimely filed. Additionally, this
Court finds that Mr. Risjan has failed to plead an exception
to the one year statutory time bar.
(Doc. 22-5 at 6.)
timeliness, the Court found that Petitioner had until July
29, 2010, to file a timely PCRA petition and, because he had
not done so, the Petition was untimely pursuant to 42 Pa.
C.S.A. § 9545(b) unless a recognized exception to the
filing requirement applied. (Id. at 2-4.) Focusing
on the exception to the timely filing requirement for newly
discovered facts, § 9545(b)(1)(ii), the Court noted that
the exception “requires a petitioner to demonstrate he
did not know the facts upon which he based his petition and
could not have learned those facts earlier by the exercise of
due diligence.” (Id. at 3 (citing
Commonwealth v. Monaco, 996 A.3d 1076, 1080 (Pa.
Super. Ct. 2010)).) The Court did not further discuss the
application of the newly discovered evidence exception which
allows a petitioner sixty days from the discovery of the
facts giving rise to the exception to file a petition.
(See Id. at 3-7.) Rather, the Court reviewed the
PCRA Hearing testimony relative to expectations that Sheldon
would file an appeal and, without making an overt credibility
determination, stated the PCRA Petition was untimely filed
and Petitioner did not plead or prove an exception to the
one-year statutory time bar. (Id. 4-6.)
Declaration, Petitioner asserts that he did not learn that
his state court PCRA Petition had not been timely filed until
June 29, 2014, when Logue sent him a copy of the June 17,
2014, Order. (Doc. 18-1 at 5-6 ¶ 23.) Petitioner adds
that, in response to this finding, he and his grandmother
requested that his attorneys return his legal papers,
including trial transcripts and discovery material.
(Id. at 6 ¶ 24.)
notice of appeal of the PCRA Court's was docketed in the
Superior Court on July 11, 2014. (Doc. 22-3 at 2.)
Logue and Pitonyak failed to return the legal materials
requested, Petitioner filed a “Motion to Remove Counsel
and Proceed from a Pro Se Standing.”
(Id. ¶ 25.) In response to this motion, which
Petitioner filed on November 12, 2014, the Superior Court
entered an Order directing the PCRA Court to conduct a
hearing pursuant to Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998), to determine if Petitioner's choice
to proceed without counsel was made knowingly, intelligently,
and voluntarily. (Doc. 22-8 at 3.) On December 22, 2014, the
PCRA Court granted the motion to proceed pro se on