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Caldwell v. Mahally

United States District Court, W.D. Pennsylvania

November 5, 2019

KEITH CALDWELL, Petitioner,
v.
LARRY MAHALLY and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          MEMORANDUM OPINION [1]

          Lisa Pupo Lenihan United States Magistrate Judge

         Pending 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.

         A. Factual Background

         The 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 school.
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 nothing missing.
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 body temperature.
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).

         B. Procedural Background

         Petitioner 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).

         On June 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.

         On 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[2] and Finley[3]. (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).

         On 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).

         On 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).

         On 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. 14-6, p.22).

         Petitioner's 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).

         C. Petitioner's Claims

         Petitioner 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 first-degree murder.

         D. AEDPA Statute of Limitations

         The 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).

         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 of the other statutory exceptions or equitable tolling should be applied on the facts presented.

         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).

         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.

         Petitioner 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 ...


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