United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION 
Pupo Lenihan United States Magistrate Judge
before the Court is an Amended Petition for Writ of Habeas
Corpus (“Habeas Petition”) filed by Petitioner
Keith Caldwell (“Petitioner”) pursuant to 28
U.S.C. § 2254. (ECF No. 15). Petitioner challenges the
judgment of sentence imposed after he was convicted by a jury
of first-degree murder for the shooting death of his
grandfather. For the following reasons, the Habeas Petition
will be dismissed as untimely and denied in the alternative.
A Certificate of Appealability will also be denied.
factual background of this case was outlined by the trial
court as follows:
This matter arises out of the murder of Nathaniel Caldwell on
March 9, 2007. Defendant, Keith Caldwell, was the
victim's grandson and lived with the victim in a first
floor apartment at 7013 Frankstown Avenue for approximately
two years prior to the murder. Defendant previously lived
with his mother and stepfather until he was sixteen and then
lived with an aunt for a short period of time before moving
in with his grandfather. At one time after moving in with the
victim, Defendant had a disagreement with the victim and was
forced to leave the residence but Defendant was later allowed
to move back. The victim's wife and Defendant's
grandmother, Mary Caldwell, lived in a second floor apartment
at the Frankstown Avenue address. Although they lived in
separate apartments, Mrs. Caldwell prepared meals for her
husband and Defendant and would routinely see them throughout
the course of the day. On the day of the murder Mrs. Caldwell
first saw the victim at approximately 7:00 a.m. when he came
to her apartment for breakfast, staying until approximately
9:30 a.m. He then returned to his apartment while she
prepared to go to work. At approximately 11:00 a.m. she
called the victim to tell him she was leaving for work. Mrs.
Caldwell did not see Defendant during the course of the
morning. Mrs. Caldwell described Defendant's relationship
with the victim as close, but acknowledged that there were
occasional disagreement between them because of
Defendant's lack of motivation and not wanting to go to
The evidence further established that Ernie Daniels, a next
door neighbor who knew the victim and Defendant, came home on
the afternoon of March 9thand was putting away
groceries in his kitchen second floor apartment. The window
in the kitchen was opened and Daniels heard a sound he
described like someone kicking or banging in his back door.
When Daniels heard the noise he looked out his back window
and saw Defendant running from the back of the apartment
building next door towards the front. Daniels testified that
although Defendant was wearing a “hoodie” it was
daylight and he could clearly see his face. Daniels testified
that it was approximately 45 minutes later that he saw the
police outside the victim's home.
The victim's daughter, Valerie Caldwell, testified that
she went to visit her father's apartment after work,
arriving shortly before 5:00 p.m. and found him with a
gunshot wound to his head and called 911 at 5:04 p.m. She
noted the smell of gunpowder when she entered the apartment.
Uniformed officers responded within minutes, finding the
victim sitting in a chair with a gunshot wound to the head.
The officers secured both the first and second floor
apartments finding no one present. They also searched the
basement area and found the basement door partially kicked in
with a footprint on the door. However, the basement door was
only opened approximately two to three inches because a forty
foot ladder prevented the door from opening further. The rear
kitchen door was locked and there were no other signs of
forced entry. There was no evidence that either apartment was
ransacked and nearby wrapped coins and the victim's
wallet, under his mattress, were undisturbed. A search
outside the apartment revealed a .357 Magnum handgun, later
identified as being owned by the victim and used in the
shooting, lying on the ground in the rear of the building
near the steps leading to the basement door that was
partially kicked in. The victim's son, Nathaniel
Caldwell, testified that when he went through his
father's belongings the day after the shooting he found
Paramedics found the victim's body sitting in a chair
with a gunshot wound to the head. The body was still warm and
there were no rigor or stiffening of the body at the time
that he was pronounced dead at 5:08 p.m. The coroner's
office retrieved the body at 7:19 p.m. and a liver core body
temperature and the lack of rigor indicated that the victim
had died within two to four hours of the taking of the core
An autopsy performed by Dr. Michael Panella of the Allegheny
County Coroner's Office determined that the victim died
of a single gunshot wound to the head with a bullet
traversing the brain and lodging in the back of the neck on
the left side. Dr. Panella opined that the wound was a close
contact wound indicating that the shooter had placed the gun
directly against the victim's skull when firing the gun.
The bullet was retrieved and found on ballistic examination
to be a 38 caliber bullet that was fired from the
victim's .357 handgun, the gun that was found at the rear
of the house.
Detective George Sattler also testified that while on the
scene investigating, Defendant was seen returning to the
residence and had to be restrained from entering the
apartment to see his grandfather. At that time Defendant was
shown the gun that was found at the rear of the residence,
which Defendant identified as being the victim's gun. As
Defendant lived with the victim, Defendant was then taken to
the Detective's office where he was questioned at
approximately 7:45 p.m. that evening. Defendant acknowledged
that he had some disagreements with his grandfather in the
past and at one point was made to leave the home but
ultimately was allowed to return. Defendant further informed
Detective Sattler that on the night before the murder he had
come home late and the victim was upset with him and wanted
him out of the residence. However, he was allowed to stay the
night. Defendant stated that he saw the victim go upstairs at
approximately 7:00 a.m. the following morning but Defendant
remained in bed until late morning or early afternoon.
Defendant stated he did not see his grandfather again but
remained in the residence until approximately 4:30 p.m. at
which time he called the emergency 911 number to ask if his
grandfather could throw him out of the house.
The evidence established that Defendant called the Allegheny
County 911 at 4:06 p.m. to ask what he characterized as a
“legal question”. Defendant then asked the 911
dispatcher, “I am only 19 and my family, my lawyer
never gave me a chance to get like secure in life. Is it
legal for them to kick me out at 19 years old?” The
transcript of the phone call indicates that the dispatcher
informed Defendant that he could not answer the question but
could either send an officer to assist him or give him a
phone number to talk to an officer over the phone. Defendant
was then given the phone number for the Zone 5 police station
and the call to 911 ended.
Officer Henry Wilson testified that he was the Zone 5 desk
officer on March 9, 2007 and that at approximately 4:20 p.m.
he received a call from an unknown male asking if he could be
kicked out of his home. Officer Wilson advised the caller
that if he was 18 years of age he could be. Officer Wilson
told him there was nothing that could be done and that the
caller then thanked him and hung up. Officer Wilson described
the caller as being “pleasant”.
During the initial interview on March 9, 2007 Defendant also
told Detective Sattler that after calling 911 and the Zone 5
station, he had called a cousin to see if he could move in
with him but it was “left up in the air whether or not
he could move in”. Defendant then said that he had left
the residence and went approximately two blocks to a local
market, locking the door to the apartment after he left.
Defendant produced a receipt showing the purchase of items at
5:09 p.m. Defendant then indicated that shortly after leaving
the market he received a phone call from a relative telling
him that his grandfather was shot and he immediately went
back to the residence. Further, as he was making his way home
he heard a cell phone ringing that was lying on the ground
and he picked it up and recognized it as his
grandfather's. Detective Sattler also indicated that
Defendant told him he was not upset at all about his
grandfather kicking him out of the house. Defendant
acknowledged that he knew that his grandfather kept a .357
revolver handgun in the residence. During the interview
Detective Sattler noticed what he believed to be a stain on
the Defendant's right boot and consent was obtained to
collect Defendant's boots and clothing. Buccal swabs for
DNA testing and a gunshot residue kit were also obtained.
DNA testing of the gun used in the shooting, Defendant's
jacket, jersey, sweatshirt, shirt and jeans were either
negative or inconclusive for blood stains or consistent with
Defendant's own blood. However, a blood stain on
Defendant's right boot matched the victim's blood.
Detective Kimberly Braddock also interviewed Defendant on
March 9, 2007 at approximately 10:45 p.m. Defendant also
acknowledged to Detective Braddock that he came home late the
night before the victim was killed and they had a
“little confrontation” because Defendant was
late. Defendant indicated that it was not an argument and
denied that there was any conversation about him being kicked
out of the house. He again repeated his accounts of that day,
including going to the store in the afternoon.
Detective Braddock also testified that as she and her partner
took the Defendant home that evening he “was overheard
talking on the phone asking why someone would shoot grandpa
in the head.” At that point his partner asked Defendant
how he knew his grandfather was shot in the head and
Defendant responded by saying “he must have been shot
in the head if he died instantly.”
(Resp't Exh. 11, ECF No. 10-3, pp.3-8) (internal
citations to trial transcript omitted).
was charged by Criminal Information filed in the Court of
Common Pleas of Allegheny County, Pennsylvania, Criminal
Division, with one count of Criminal Homicide, 18 Pa. C.S.A.
§ 2501, in connection with the murder of his grandfather
on March 9, 2007. (Resp't Exh. 2; ECF No. 10-1,
pp.19-21.) On March 10, 2008, Petitioner, represented by
Robert Foreman, Esq. (“Attorney Foreman”),
appeared for a jury trial before the Honorable Randal B. Todd
(“Judge Todd”). Two days later, the jury found
Petitioner guilty of first-degree murder and he was sentenced
to life imprisonment on April 24, 2008. (Resp't Ex. 2;
ECF No. 10-1, p.19.) Petitioner, through Thomas N. Farrell,
Esq. (“Attorney Farrell”) filed a post-sentence
motion on May 5, 2008 (Resp't Ex. 4; ECF No. 10-1,
pp.32-36), which Judge Todd denied on May 7, 2008 (Resp't
Ex. 5; ECF No. 10-1, p.37).
3, 2008, Petitioner, through Attorney Farrell, appealed his
judgment of sentence arguing that there was insufficient
evidence to support his first-degree murder conviction.
(Resp't Exh. 6; ECF No. 10-2, pp.1-17); (Resp't Exh.
9; ECF No. 10-2, pp.34-37.) On January 18, 2011, Judge Todd
filed his Opinion pursuant to Pennsylvania Rule of Appellate
Procedure (“Pa. R.A.P.”) 1925(a). (Resp't
Exh. 11; ECF No. 10-3, pp.1-25.) The Superior Court of
Pennsylvania affirmed Petitioner's judgment of sentence
on November 14, 2011. (Resp't Exh. 15; ECF No. 10-7,
pp.1-13.) Petitioner, through Attorney Farrell, filed a
Petition for Allowance of Appeal (Resp't Exh. 17; ECF
Nos. 10-8, 10-9), which the Supreme Court of Pennsylvania
denied on April 25, 2012 (Resp't Exh. 19; ECF No. 10-10,
p.2). Petitioner did not file a petition for writ of
certiorari with the United States Supreme Court.
December 5, 2012, Petitioner filed a pro se Motion
to Set Aside and/or Vacate Judgment Procured Through Fraud,
which the court construed as a petition pursuant to
Pennsylvania's Post-Conviction Relief Act
(“PCRA”). (Resp't Exh. 20; ECF Nos. 11-1,
11-2.) Judge Todd, acting as the PCRA court, appointed
Charles Robert Pass, III, Esquire, (“Attorney
Pass”) to represent Petitioner for those proceedings,
and on February 4, 2013, Attorney Pass filed a Motion for
Leave to Withdraw as counsel pursuant to
Turner and Finley. (Resp't Exh.
21; ECF No. 11-3.) On May 20, 2013, Judge Todd issued an
order that granted Attorney Pass leave to withdraw and gave
Petitioner notice that his PCRA petition would be dismissed.
(Resp't Exh. 22; ECF No. 11-4, pp.1-4.) Petitioner filed
a pro se response to the PCRA court's notice
(Resp't Exh. 23; ECF No. 11-4, pp.5-9), and the petition
was dismissed without a hearing on June 28, 2013 (Resp't
Exh. 24; ECF No. 11-4, pp.10-11). Petitioner appealed pro
se (Resp't Exh. 25; ECF No. 11-4, pp.12-19), and, on
January 6, 2014, Judge Todd issued his Opinion pursuant to
Pa. R.A.P. 1925(a) (Resp't Exh. 26; ECF No. 11-4,
pp.20-40). The Superior Court affirmed the dismissal of the
PCRA petition on July 15, 2014. (Resp't Exh. 30; ECF No.
11-7.) Petitioner moved for reconsideration (Resp't Exh.
31; ECF Nos. 12-1, 12-2), but his motion was denied by the
appellate court on September 4, 2014 (Resp't Exh. 32; ECF
No. 12-3, p.1). He then filed a pro se Petition for
Allowance of Appeal (Resp't Exh. 34; ECF Nos. 12-4,
12-5), which the Pennsylvania Supreme Court denied on
December 30, 2014 (Resp't Exh. 36; ECF No. 12-6, p.2).
January 9, 2014, while Petitioner's appeal of his PCRA
petition was pending before the Superior Court, he filed a
pro se Application Seeking an Order to Conduct
Forensic D.N.A. Testing pursuant to 42 Pa. C.S.A. §
9543.1. (Resp't Exh. 37; ECF No. 12-6, pp.3-7.) The
Commonwealth was directed to respond and they filed an Answer
to the motion on February 7, 2014. (Resp't Exh. 38; ECF
No. 12-6, pp.8-32.) On March 27, 2014, Judge Todd entered an
order staying the request for testing until the conclusion of
Petitioner's appeal. (Resp't Exh. 39; ECF No. 12-6,
pp.33-34.) On July 17, 2014, after the Superior Court had
affirmed dismissal of Petitioner's PCRA petition, Judge
Todd entered an order giving notice of the court's
intention to dismiss Petitioner's motion for DNA testing.
(Resp't Exh. 40; ECF No. 12-7, pp.1-3.) Petitioner filed
a response to the court's notice on August 11, 2014
(Resp't Exh. 42; ECF No. 12-7, pp.1120), and, on
September 4, 2014, the court dismissed the motion (Resp't
Exh. 43; ECF No. 12-7, p.21).
September 19, 2014, Petitioner filed a pro se
Affidavit and Notice/Motion to Compel, which the court
construed as a second PCRA petition. (Resp't Exh. 44; ECF
No. 12-7, pp.2233.) On October 27, 2014, Judge Todd entered
an order giving notice of the court's intention to
dismiss the petition. (Resp't Exh. 45; ECF No. 12-7,
pp.34-36.) On November 19, 2014, the petition was dismissed
as untimely. (Resp't Exh. 46; ECF No. 12-7, pp.37-38.)
Petitioner appealed pro se (Resp't Exh. 47; ECF
No. 12-7, pp.39-45), and Judge Todd filed his Pa. R.A.P.
1925(a) Opinion on July 20, 2015 (Resp't Exh. 49; ECF No.
12-8, pp.7-13). On April 15, 2016, the Superior Court
affirmed the dismissal of the second PCRA petition.
(Resp't Exh. 53; ECF No. 13-5, pp.1-4.) Petitioner moved
for reconsideration (Resp't Exh. 54; ECF No. 13-5,
pp.514) and his motion was denied on June 6, 2016 (Resp't
Exh. 55; ECF No. 13-5, p.15). On July 5, 2016, Petitioner
filed a pro se Petition for Allowance of Appeal
(Resp't Exh. 57; ECF No. 13- 6, pp.1-17) and the
Pennsylvania Supreme Court denied it on November 1, 2016
(Resp't Exh. 58; ECF No. 13-6, p.18).
January 5, 2015, while the appeal of Petitioner's second
PCRA petition was pending before the Superior Court,
Petitioner filed another pro se Application Seeking
an Order to Conduct Forensic D.N.A. Testing pursuant to 42
Pa. C.S.A. § 9543.1. (Resp't Exh. 59; ECF No. 13-6,
pp.19-39.) The Commonwealth responded to the motion on
February 12, 2015 (Resp't Exh. 60; ECF No. 13-7,
pp.1-28), and, on March 3, 2015, Judge Todd denied the motion
(Resp't Exh. 61; ECF No. 13-7, pp.29-30). Petitioner
appealed pro se (Resp't Exh. 62; ECF No. 13-7,
pp.31-37), and, on July 20, 2015, Judge Todd filed his Pa.
R.A.P. 1925(a) Opinion (Resp't Exh. 63; ECF No. 13-7,
pp.38-47). On April 15, 2016, the Superior Court affirmed the
denial of Petitioner's motion for DNA testing.
(Resp't Exh. 67; ECF No. 14-5, pp.1-6.) Petitioner's
motion for reconsideration that he filed on May 2, 2016
(Resp't Exh. 68; ECF No. 14-5, pp.728), was denied by the
Superior Court on June 6, 2016 (Resp't Exh. 69; ECF No.
14-5, p.29). On July 1, 2016, Petitioner filed a pro
se Petition for Allowance of Appeal (Resp't Exh. 71;
ECF No. 14-6, pp.4-21) that the Pennsylvania Supreme Court
denied on November 15, 2016 (Resp't Exh. 72; ECF No.
original Petition for Writ of Habeas Corpus was signed on
December 6, 2016 and postmarked the following day. (ECF No.
1.) The case was closed following the Court's denial of
Petitioner's motion to proceed in forma pauperis
and then subsequently reopened when Petitioner paid the
filing fee on January 6, 2017. (ECF Nos. 2, 3.) His original
Petition for Writ of Habeas Corpus was docketed by the Clerk
on January 6, 2017 (ECF No. 4), and Respondents filed an
Answer to it on February 15, 2017 (ECF Nos. 9-14). Petitioner
then filed what the Court construed as an Amended Petition
for Writ of Habeas Corpus (“the Habeas Petition”)
on April 5, 2017 (ECF Nos. 15, 16), and Respondents filed an
Answer to it on April 18, 2017 (ECF No. 17).
raises three claims for relief in his Habeas Petition. First,
he claims that he was denied the effective assistance of
counsel when his trial counsel improperly argued the
significance of the DNA evidence, and he also claims that
trial counsel was ineffective for failing to object to the
Commonwealth's presentation of the DNA evidence. Second,
Petitioner claims that all counsel were ineffective for
failing to raise a claim that he was questioned by detectives
in violation of his constitutional rights. Third, he alleges
a violation of due process because the Commonwealth did not
present sufficient evidence to prove him guilty of
AEDPA Statute of Limitations
Antiterrorism and Effective Death Penalty Act of 1996
(“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).
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 of the other statutory
exceptions or equitable tolling should be applied on the
three claims raised by Petitioner in his Habeas Petition
concern matters which occurred at the time of trial. They do
not involve newly enunciated constitutional rights and are
not based on facts that were discovered at a later date.
Furthermore, there were no state-created impediments that
prevented Petitioner from raising the claims sooner.
Consequently, the “trigger date” for
Petitioner's one-year limitations period is the date on
which his judgment of sentence became final, which, in this
case, was the last day that Petitioner had to file a petition
for writ of certiorari in the United States Supreme Court.
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). In this case, the
Pennsylvania Supreme Court denied Petitioner's Petition
for Allowance of Appeal on April 25, 2012, and he had
ninety-days from that day, or until July 24, 2012, to file a
petition for writ of certiorari. He did not file a petition
for writ of certiorari, so his judgment of sentence became
final on July 24, 2012. Absent any tolling for
“properly filed” applications for post-conviction
relief, Petitioner had until July 24, 2013 to file a timely
federal habeas petition challenging his conviction. For
purposes of the prisoner mailbox rule, Petitioner's
Habeas Petition was filed on December 6, 2016, the date he
signed it, so the Court must determine whether Petitioner can
take advantage of the tolling provision in section
2244(d)(2) provides that the one-year limitations period is
tolled during the pendency of a “properly filed”
state post-conviction proceeding. Petitioner filed his first
PCRA petition on December 5, 2012, at which time 133 days of
his one-year limitations period had expired (July 25, 2012
thru December 4, 2012). Those proceedings were
“properly filed, ” and, as such, the statute of
limitations was tolled until they concluded when the
Pennsylvania Supreme Court denied Petitioner's Petition
for Allowance of Appeal on December 30, 2014. The statute of
limitations started to run again the following day, and, at
that point in time, Petitioner only had 232 days
(365-133=232) remaining to file a timely habeas petition, or
until August 19, 2015. As previously noted, he did not file
his Habeas Petition until December 6, 2016, over a year after
the statute of limitations expired.
appears to argue that he is entitled to tolling for the time
his second PCRA petition was pending in the state courts.
While Petitioner did file a second PCRA petition on September
19, 2014, that petition was dismissed as untimely and was
thus not “properly filed” within the meaning of
section 2244(d)(2). See Artuz v. Bennett, 121 S.Ct.
361, 364 (2000) (An application for state post-conviction
relief or collateral review is “properly filed”
as required to toll AEDPA's statute of limitations period
for filing a federal habeas petition “when its delivery
and acceptance are in compliance with the applicable laws and
rules governing filings[, ]” notwithstanding the
substance or merits of the claims contained within the
application itself. These “applicable laws and rules
governing filings” usually prescribe “the form of
the document, the time limits upon its delivery, the court
and office in which it must be lodged, and the requisite
filing fee . . . .”). See also Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005) (a ...