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Risjan v. Wetzel

United States District Court, M.D. Pennsylvania

July 15, 2019

SHANE DAVID RISJAN, Petitioner
v.
JOHN WETZEL, et al., Respondents.

          Mehalchick Magistrate Judge

          MEMORANDUM OPINION

          Robert D. Manani United States District Judge

         I. INTRODUCTION

         Presently 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.

         II. FACTUAL BACKGROUND

         Other 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 through 22-11).

         On 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 at 4-5.)

         The 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).)[1] 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.)

         As 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. (Id.)

         The 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.

         The 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.)

         Petitioner 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?
[Logue] Yes
[Petitioner] No.

(Id. (Tr. 13:18-25).)

         Sheldon 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 follows:

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).)

         Sheldon 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 sentencing.

(Doc. 22-7 at 16 (Tr. at 25:20-26:5).)

         Sheldon 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 as follows:

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).)

         On 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 23:19-24:3).)

         Regarding 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 29:8-30:2).)

         Regarding 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. at 28:9-17).)

         One 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 32:9-23).)

         The 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).)

         On 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).)

         In 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 of record.
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 request.
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).)

         Petitioner 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 me.” (Id.)

         Regarding 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 appeal.
. . . 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. (Id.)

         Petitioner 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:

         Dear Shane:

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.)

         Petitioner 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.)

         On 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 area.
[McMurry] Mr. Sheldon told you or told your grandmother that he did not want to do the appeal?
[Petitioner] Yes.
[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.

         [McMurry] 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 attorney.
[McMurry] Did your grandparents contact another attorney?
[Petitioner] Yes, they did. They did contact another one and were denied.
[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).)

         On May 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.)

         On May 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 Corpus.

(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 § 9545(b)(1)(i)-(iii).

         On June 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.)

         Regarding 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.)

         In his 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.)

         A notice of appeal of the PCRA Court's was docketed in the Superior Court on July 11, 2014. (Doc. 22-3 at 2.)

         Because 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 ...


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