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Dacenzo v. Mooney

United States District Court, M.D. Pennsylvania

October 17, 2019

FREDERICO A. DACENZO, JR., Petitioner
v.
VINCENT MOONEY, et al., Respondents

          MEMORANDUM

          Robert D. Mariani United States District Judge

         Frederico A. Dacenzo, Jr., a former Pennsylvania state prisoner, [1] filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2009 Lycoming County Court of Common Pleas guilty plea conviction to ten counts of sexual abuse of children (possession of child pornography) and one count of criminal use of a communication facility. (ECF No. 1.) Respondent argues that Mr. Dacenzo's petition is untimely. (ECF No. 17.) Mr. Dacenzo asserts that his Petition is timely based on a new rule of constitutional law made retroactively applicable to cases on collateral appeal. Petitioner contends that the Supreme Court's decision in Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), [2] made the new rule of constitutional law announced in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)[3] retroactively applicable to cases on collateral review. He claims his sentence is unconstitutional because the trial court violated Alleyne by considering elements of “other crimes” (a juvenile conviction) that were not found by the jury. (ECF No. 19.) For the following reasons Mr. Dacenzo's petition will be dismissed as untimely. A certificate of appealability will not issue.[4]

         I. Relevant Procedural History

         The Court takes the following factual background from the Pennsylvania Superior Court's opinion addressing Mr. Dacenzo's third untimely petition for collateral review under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541, et seq.:

On October 13, 2009, Dacenzo entered a negotiated guilty plea to ten counts of sexual abuse of children (possession of child pornography) and one count of criminal use of a communication facility. Dacenzo was sentenced to an aggregate term of 10-20 years' imprisonment, with a 20-year probationary tail. Dacenzo was also ordered to register for ten years under Megan's Law. Dacenzo did not file post-sentence motions or a direct appeal. On August 13, 2012, Dacenzo filed a pro se PCRA petition; appointed counsel filed a motion to withdraw pursuant to Turner/Finley. On October 24, 2012, Dacenzo filed a motion to dismiss counsel's motion to withdraw. On December 6, 2012, the trial court entered an order giving Dacenzo notice of its intent to dismiss his PCRA petition, in accordance with Pa. R. Crim. P. 907(1), denying Dacenzo's motion to dismiss and granting counsel leave to withdraw.
On December 21, 2012, Dacenzo filed an objection to the court's intent to dismiss his petition. On January 8, 2013, the trial court dismissed Dacenzo's petition. Dacenzo appealed that decision; [the Superior Court of Pennsylvania] affirmed the trial court's order concluding that the petition was patently untimely and Dacenzo did not satisfy the “after-discovered fact” exception set forth in 42 Pa. C.S. § 9545(b)(1)(ii). See Commonwealth v. Dacenzo, 172 MDA 2013 (filed Sept. 19, 2013) (Pa. Super. 2013).
On December 11, 2014, Dacenzo filed a pro se motion to amend his sentence, seeking RRRI eligibility. On December 19, 2014, the court denied the motion stating that Dacenzo was not RRRI eligible due to his conviction for an offense that requires him to register under Megan's Law. See61 Pa. C.S. § 4503(4). In January 2015, Dacenzo filed an appeal from the denial of his RRRI motion. On July 21, 2015, [the Superior Court] affirmed the denial of Dacenzo's RRRI petition, treating the petition as a serial PCRA petition, and concluding that the PCRA court lacked jurisdiction to grant Dacenzo any relief where his petition was patently untimely[, ] and he did not plead and prove any PCRA time-bar exception.Commonwealth v. Dacenzo, 80 MDA 2015 (filed July 21, 2015) (Pa. Super. 2015).

Commonwealth v. Dacenzo, No. 237 MDA 2017, 2017 WL 3711064, at *1 (Pa. Super. Aug. 29, 2017) (internal footnotes omitted).

         Mr. Dacenzo filed his third PCRA petition on February 23, 2016. (ECF No. 17-2 at 91 - 94.) Mr. Dacenzo argued that although his Petition was facially untimely, he met the requirements of 42 Pa. Cons. Stat. §9545(b)(1)(iii), the newly recognized right exception, because he filed his Petition within 60 days of the Montgomery.(ECF No. 17-2 at 92.) He opined that the Supreme Court's ruling in Montgomery held “Alleyne, supra, retroactively applicable” to cases on collateral review, entitled him to resentencing. (Id.) On September 30, 2016, the trial court dismissed the petition as untimely “without exception to the PCRA time-bar.” (Id. at 97 and 99.) The Superior Court of Pennsylvania denied Mr. Dacenzo's appeal on August 29, 2017. The Superior Court held Mr. Dacenzo's claim was without merit as Alleyne was not retroactive to cases on collateral review and that while the Supreme Court in Montgomery held that the holding of Miller was a substantive rule of constitutional law to which state collateral review courts were required to give retroactive effect, Miller had “no applicability to the instant case”. See Dacenzo, 2017 WL 3711064, at *3 (citing Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (Alleyne did not announce a new rule of constitutional law and courts cannot review alleged illegality of sentence claim raised in untimely PCRA petition for which no time-bar exception applies due to lack of jurisdiction) and Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (Alleynedoes not apply retroactively to collateral attacks on mandatory minimum sentences)). The Supreme Court of Pennsylvania denied Mr. Dacenzo's Petition for Allowance of Appeal on March 14, 2018. (Id. at 108.)

         Mr. Dacenzo filed the instant habeas petition on April 21, 2018, while housed at the Retreat State Correctional Institution in Hunlock Creek, Pennsylvania. (ECF No. 1.) On May 22, 2018, the Court issued a notice of election pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mayson v. Meyers, 208 F.3d 414 (3d Cir. 2000).[5] (ECF No. 3.) After Mr. Dacenzo elected to proceed on his Petition as filed (ECF No. 4), the Court served the Petition on Respondent (ECF No. 8). Respondent filed an Answer to the Petition arguing Mr. Dacenzo's Petition is untimely without exception, his claims are procedurally defaulted, and that federal habeas relief is not available to address his claim that the state court erred in calculating his prior record score when sentencing him. (ECF No. 17.) Mr. Dacenzo filed a Reply in which he restated his grounds for relief and argues his third PCRA Petition was timely. (ECF No. 19.)

         II. Discussion

         A. Relevant Law

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) provides a one-year statute of limitations for the filing of an application for a writ of habeas corpus by a person in state custody. See28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), the limitations period runs 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 ...

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