FERNANDEZ v. ESTOCK

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

JULIAN FERNANDEZ, :

Petitioner, :

:

v. : No. 2:19-cv-05780

:

SUPERINTENDENT LEE ESTOCK, :

THE DISTRICT ATTORNEY OF THE :

COUNTY OF MONTGOMERY, and :

THE ATTORNEY GENERAL OF THE :

STATE OF PENNSYLVANIA, :

Respondents. :

O P I N I O N

Joseph F. Leeson, Jr. February 26, 2020

United States District Judge

I. INTRODUCTION

On July 26, 2019, Petitioner Julian Fernandez filed a Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254. In his petition, Fernandez alleges four claims, three of which

relate to his sentence and a fourth that relates to parole denial. On August 26, 2020, Magistrate

Judge Thomas J. Rueter issued a Report and Recommendation on Fernandez’s petition. Therein,

Magistrate Judge Rueter recommends dismissal of claims one, two, and three as untimely and

dismissal of claim four on the merits. After de novo review, this Courts adopts Magistrate Judge

Rueter’s Report and Recommendation as to all claims as further explained below. The Court

writes separately to address Fernandez’s objections to the Report and Recommendation, which

are overruled. For those reasons, the petition is dismissed and denied.

II. BACKGROUND

Following a non-jury trial in the Montgomery County Court of Common Pleas that

concluded on April 27, 2009, Fernandez was found guilty of two counts of possession with intent

to distribute a controlled substance, two counts of possession of a controlled substance, and one

count of possession of drug paraphernalia. See No. CP-46-CR-6474-2007. On November 9,

2009, Fernandez was sentenced to five to ten years imprisonment to be followed by five years of

probation. See id. The sentence was imposed pursuant to 42 Pa. Cons. Stat. § 9712.1, which

provided the mandatory minimum sentence for the offenses. See 42 Pa. Cons. Stat. § 9712.1(a).

Fernandez appealed to the Pennsylvania Superior Court, and his conviction and sentence were

affirmed on October 12, 2011. See Commonwealth v. Fernandez, 37 A.3d 1228 (Pa. Super. Ct.

2011) (unpublished memorandum). On May 24, 2012, the Pennsylvania Supreme Court denied

Fernandez’s petition for leave to appeal, and Fernandez did not seek certiorari to the United

States Supreme Court. See Commonwealth v. Fernandez, 616 Pa. 633 (Pa. 2012).

In 2014, the sentencing practice under § 9712.1 was found unconstitutional by the

Pennsylvania Superior Court. See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. Ct. 2014)

(finding § 9712.1 unconstitutional in light of Alleyne v. United States, 570 U.S. 99 (2013)). On

September 24, 2014, Fernandez filed his first Pennsylvania Post Conviction Relief Act (PCRA)

petition, lodging an Alleyne challenge to his sentence. See Commonwealth v. Fernandez, No.

3212 EDA 2015, 2016 WL 7495119, at *1 (Pa. Super. Ct. Dec. 30, 2016). On October 5, 2015,

the PCRA court dismissed Fernandez’s petition as untimely.1 See id. The Superior Court

affirmed on December 30, 2016, finding no exceptions applied to render Fernandez’s petition

1 PCRA petitions must typically be filed “within one year of the date the judgment of

sentence becomes final.” See Fernandez, 2016 WL 7495119, at *2 (citing 42 Pa. Cons. Stat. §

9545(b)(1)). However, where a petitioner contends that the Supreme Court of the United States

or Pennsylvania Supreme Court has supplied a new constitutional right retroactively applicable

to his claims, he must file within 60 days of the decision upon which he intends to rely. See id.

(citing § 9545(b)(2)). With respect to Fernandez’s first PCRA petition, the PCRA Court

determined that Fernandez failed to file within 60 days of Alleyne, which was decided on June

17, 2013. See id.

timely filed.2 See id. Fernandez filed a subsequent PCRA petition on February 22, 2017,

lodging a similar Alleyne challenge. See Commonwealth v. Fernandez, No. 2423 EDA 2018,

2019 WL 2447055, at *1 (Pa. Super. Ct. June 11, 2019). The PCRA court again dismissed the

petition as untimely, a decision that was affirmed by the Superior Court on June 11, 2019. See

id.

On May 9, 2017, during pendency of his second PCRA petition, Fernandez filed a federal

habeas petition with this court. See Fernandez v. Bush, No. 2:17-cv-02289, 2019 WL 275976, at

*2 (E.D. Pa. Jan. 18, 2019). Fernandez’s federal petition set forth two claims: (1) that his

sentence was unconstitutional and (2) that the sentencing statute under which he was sentenced

was void for vagueness. Magistrate Judge Thomas J. Rueter filed a Report and

Recommendation, recommending that this Court dismiss Fernandez’s first claim as untimely and

dismiss his second claim as unexhausted. See id. at *1. This Court approved and adopted the

Report and Recommendation of Magistrate Judge Thomas J. Rueter on January 18, 2019. See id.

at *3.

Fernandez then filed a “Motion under 28 U.S.C. § 2254 for Order Authorizing District

Court to Consider Second or Subsequent Application for Relief” with the Third Circuit. See In

re: Julian Fernandez, No. 19-2783 (Order dated Sept. 10, 2019). To the motion, Fernandez

attached the new habeas petition that he wished to file. On September 10, 2019, the Third

Circuit issued an Order, deeming the motion seeking leave to file a second or successive petition

unnecessary. See id. The Third Circuit determined that Fernandez’s first federal habeas petition

2 The Superior Court also noted that, even if it considered the petition timely, Fernandez’s

Alleyne challenge to his sentence would still fail because “Alleyne does not apply retroactively to

cases on collateral review where the petitioner’s judgment of sentence had already become

final.” See Fernandez, 2016 WL 7495119, at *3.

contained only unexhausted claims, and as such, the petition should have been dismissed in its

entirety without prejudice. See id. The Third Circuit transferred Fernandez’s newest petition to

this Court with instruction that it be treated as filed as of July 26, 2019. See Order 12/6/2019,

ECF No. 1.

Fernandez asserts four claims in the instant petition:

1. “Sentencing decision exceeds the statutory maximum in violation of the

Eigth [sic] Amendment to the US Constitution and in violation of Due Process.”

2. “The continued enforcement of a sentence which is wholly unauthorized by

a valid law.”

3. “The lack of notice and arbitrary enforcement of a criminal statute not

pertaining to prior convictions is subject to a void for vagueness attack.”

4. “The continued denial of parole for non-admittance of guilt that does not go

towards the rehabilitative evaluation or risk to the community as a whole.”

See Pet. 8-14, ECF No. 2.

Respondents filed a response to the petition on May 1, 2020. See Resp., ECF No. 18.

Therein, Respondents argued that all of Fernandez’s claims should be dismissed as untimely.

See id. Pursuant to an Order from this Court, the Attorney General filed a response to the instant

petition on August 5, 2020, which addressed Fernandez’s fourth claim, the parole denial claim,

on the merits. See AG Resp., ECF No. 28. On August 26, 2020, Magistrate Judge Thomas J.

Rueter issued a Report and Recommendation on the instant petition. See R&R, ECF No. 30.

Therein, Magistrate Judge Rueter, recommends dismissal of claims one through three as

untimely and dismissal of claim four on the merits. See id. On September 9, 2020, Fernandez

filed his objections to the Report and Recommendation. See Pet.’s Obj., ECF No. 31.

III. LEGAL STANDARDS

A. Review of Petition of Habeas Petition

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “state

prisoners must give the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process” before seeking

federal habeas review. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Where a petitioner

has failed to properly present his claims in the state court and no longer has an available state

remedy, he has procedurally defaulted those claims. See id. at 847-48. An unexhausted or

procedurally defaulted claim cannot provide the basis for federal habeas relief unless the

petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 732-33, 750

(1991) (explaining that a “habeas petitioner who has defaulted his federal claims in state court

meets the technical requirements for exhaustion [because] there are no state remedies any longer

‘available’ to him”). The Supreme Court has held that the ineffectiveness of counsel on

collateral review may constitute “cause” to excuse a petitioner’s default. See Martinez v. Ryan,

566 U.S. 1 (2012). The fundamental miscarriage of justice exception “applies to a severely

confined category: cases in which new evidence shows ‘it is more likely than not that no

reasonable juror would have convicted [the petitioner].’” McQuiggin v. Perkins, 569 U.S. 383,

395 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

The AEDPA “imposes a highly deferential standard for evaluating state-court rulings and

demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562

U.S. 594, 598 (2011) (internal quotations omitted); see also 28 U.S.C. § 2254(d);3 Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (holding that there is a “doubly deferential judicial review

that applies to a Strickland claim evaluated under the § 2254(d)(1) standard” because the

question before a federal court is not whether the state court’s determination was correct, but

whether the determination was unreasonable); Hunterson v. Disabato, 308 F.3d 236, 245 (3d Cir.

2002) (“[I]f permissible inferences could be drawn either way, the state court decision must

stand, as its determination of the facts would not be unreasonable.”). Additionally, “a federal

habeas court must afford a state court’s factual findings a presumption of correctness and that []

presumption applies to the factual determinations of state trial and appellate courts.” Fahy v.

Horn, 516 F.3d 169, 181 (3d Cir. 2008). The habeas petitioner has the “burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

C. Law Governing the Timeliness of a Habeas Petition

The AEDPA provides a one-year statute of limitations for habeas corpus petitions. See

28 U.S.C. § 2244(d). The statute also provides the factual predicates for the running of the

limitations period in relevant part:

(d)(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;

3 “An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted with respect to any claim that was adjudicated

on the merits in State court proceedings unless the adjudication . . . resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established Federal law . . .;

or . . . resulted in a decision that was based on an unreasonable determination of the facts . . . .”

28 U.S.C. § 2254(d).

(C) the date on which the constitutional right asserted was initially recognized by

the Supreme Court, if the 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 factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

See id.

A petitioner’s judgment becomes “final” under 2244(d)(1)(A) when the time for filing a

writ of certiorari expires. See Kapral v. United Sates, 166 F.3d 565, 570-71 (3d Cir. 1999).

Additionally, § 2244 tolls the limitations period during the pendency of a state post-conviction

relief petition. See 28 U.S.C. § 2244(d)(2). Notwithstanding, the pendency of a state post-

conviction petition does not toll the AEDPA limitations period once the AEDPA limitations

period has already expired. See Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004).

Apart from the provisions of 2244(d)(1), the limitations period may be subject to

equitable tolling. See Holland v. Florida, 560 U.S. 631, 647-49 (2010). Courts within this

Circuit look for the following factors in determining whether equitable tolling is warranted:

(1) whether the state actively mislead the petitioner into believing he had done everything

required of him to assert his rights;

(2) whether the petitioner has, in some extraordinary way, been prevented from asserting

his rights; or

(3) whether the petitioner timely asserted his rights but in the wrong forum.

See Urcionli v. Cathel, 546 F.3d 269, 272 (3d Cir. 2008) (citing Satterfield v. Johnson, 434 F.3d

185, 195 (3d Cir. 2006)). The Third Circuit cautions that equitable tolling is to be granted

sparingly. See LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005).

B. Review of Report and Recommendation with Objections

When objections to a report and recommendation have been filed, “the court shall make a

de novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.”4 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks,

885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984).

“District Courts, however, are not required to make any separate findings or conclusions when

reviewing a Magistrate Judge’s recommendation de novo under 28 U.S.C. § 636(b).” Hill v.

Barnacle, 655 F. App’x 142, 147 (3d Cir. 2016). The “court may accept, reject, or modify, in

whole or in part, the findings and recommendations” contained in the report. 28 U.S.C. §

636(b)(1)(C) (2009).

D. Review of Fifth Amendment Right against Self-incrimination Claim

Under the Fifth Amendment, “no person shall . . . be compelled in any criminal case to be

a witness against himself . . . .” U.S. Const. amend. V. “Though a prisoner already may have

been convicted and imprisoned for an offense, the Fifth Amendment still applies to ensure that

the individual not be compelled to bear witness against himself or to divulge information that

might incriminate him in future criminal proceedings.” Roman v. DiGuglielmo, 675 F.3d 204,

210 (3d Cir. 2012) (citing Minnesota v. Murphy, 465 U.S. 420, 426 (1984)). To make out a Fifth

Amendment violation, a petitioner must show “compulsion and use” of the incriminating

statements. See id.

The Third Circuit has addressed whether certain penalties against incarcerated individuals

qualify as “compulsion” rising to the level of a Fifth Amendment violation. See Roman, 675

F.3d at 213 (citing McKune v. Lile, 536 U.S. 24 (2017)). The Third Circuit stated that

4 Following his objections to the Report or Recommendation, Fernandez filed a “Motion to

Compel De Novo Determination.” See Mot. for De Novo Review, ECF No. 35. Therein,

Fernandez seeks to compel this Court to conduct a de novo review of those portions of the report

and recommendation to which he objected. See id. at 1. Notwithstanding, 28 U.S.C. §

636(b)(1)(C) already compels this Court to review those portions de novo. Accordingly, the

motion to compel is dismissed.

under McKune, those penalties that merely alter the degree of comfort or freedom

that an inmate is afforded, within the context of his confinement, but that otherwise

remain within the permissible bounds of the inmate’s prescribed sentence, are

differences in measure alone and thus do not amount to compulsion under the Fifth

Amendment. . . . In contrast, penalties that go beyond the mere “unpleasant” and

are different in kind than those conditions of confinement imposed on all

prisoners—that strike at the core of an inmate’s recognized entitlements, that

threaten his bodily safety, or that impose additional punishment beyond that already

imposed by fair judicial process—constitute impermissible compulsion under the

Fifth Amendment.

See Roman, 675 F.3d at 214 (citing McKune, 536 U.S. 51-54 (O’Connor, J., concurring)).

In applying this analysis to the penalty of parole denial, the court first noted that there is

no right or entitlement to parole under Pennsylvania Law. See id. Second, the court noted that

the prisoner’s sentence had not been lengthened beyond that imposed by the “fair judicial

process” and the conditions of imprisonment remained unchanged. See id. Third, the court

determined that the penalty is not “unique in its nature or severity. See id. at 215. In light of

these principles, the Third Circuit determined that the prisoner’s repeat denial of parole did not

“rise to the level of compulsion necessary to violate the Fifth Amendment.” See id. at 214.

E. Review of Fourteenth Amendment Procedural Due Process Claim

The Fourteenth Amendment provides, in relevant part, that “[n]o State shall . . . deprive

any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend.

XIV § 1. “The due process analysis starts with determining whether the liberty interest asserted

is one that is protected by the Fourteenth Amendment.” Stephens v. Canino, 71 F. Supp. 3d 510,

513 (E.D. Pa. 2014) (citing Montanez v. Sec’y Dep’t of Corr., 773 F.3d 472, 482–83 (3d Cir.

2014)). “Pennsylvania does not recognize ‘a protected liberty interest, or due process rights, in

parole until the inmate is actually released on parole.’” Alford v. Laquise, 604 F. App’x 93, 94

(3d Cir. 2015) (quoting Nieves v. Pa. Bd. of Prob. & Parole, 995 A.2d 412, 418 (Pa. Commw.

Ct. 2010)).

F. Review of Fourteenth Amendment Substantive Due Process Claim

“[T]he Due Process Clause contains a substantive component that bars certain arbitrary,

wrongful government actions regardless of the fairness of the procedures used to implement

them.” Newman v. Beard, 617 F.3d 775, 782 (quoting Zinermon v. Burch, 494 U.S. 113, 125

(1990)). “Conduct can violate substantive due process if it ‘shocks the conscience, which

encompasses only the most egregious official conduct.’” See id. (quoting Chainey v. Street, 523

F.3d 200, 219 (3d Cir. 2008)). “As a threshold matter, a plaintiff must demonstrate that he

possessed an interest protected by the due process clause.” See Grabiak v. Pa. State Police, 276

F. App’x 210, 213 (3d Cir. 2008) (citing Nicholas v. Pa. State Univ., 227 F.3d 133, 139-40 (3d

Cir. 2000)).

“[T]he requirements of substantive due process are met if there is some basis for the

challenged decision.” Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001). Additionally,

“federal courts, on habeas review, are not to ‘second-guess parole boards . . . .’” Hunterson v.

DiSabato, 308 F.3d 236, 246 (3d Cir. 2002) (quoting Coady, 251 F.3d at 487).

IV. DISCUSSION

A. Timeliness of Claims 1, 2, and 3

Fernandez’s first three claims relate to the constitutionality of his sentence. In his first

claim, he asserts that his sentence exceeds the statutory maximum in violation of the Eighth

Amendment and due process. In his second, he asserts that his sentence is based on a now-

unconstitutional statute. Third, Fernandez asserts that the statute under which he was sentenced

is void for vagueness. In the Report and Recommendation, Magistrate Judge Rueter determined

that all three claims are untimely. Because Fernandez objects, this Court reviews the timeliness

of these claims de novo.

Fernandez’s conviction became final on August 22, 2012, the date on which his

opportunity to file a writ of certiorari expired. See Fernandez, 2016 WL 7495119, at *1. Under

2244(d)(1)(A), Fernandez had one year from that date, until August 22, 2013, to file his habeas

petition. On September 24, 2014, Fernandez filed his first PCRA petition. While filing of a

PCRA petition would typically toll the habeas limitations period, the time to file a habeas

petition had already expired. See Fernandez, 2016 WL 7495119, at *1. Therefore, Fernandez’s

PCRA petition does not toll the federal limitations period. See Long, 393 F.3d at 394-95.

Fernandez did not file the instant habeas petition until July 26, 2019, well after the August 23,

2013 deadline. Therefore, Fernandez’s petition is untimely absent any application of statutory or

equitable tolling of the limitations period.

1. Statutory Tolling

A petitioner may seek statutory tolling of the habeas limitations period under any of the

four enumerated exceptions in 28 U.S.C. § 2244(d)(1). Most applicable to claims one through

three, under § 2244(d)(1)(C), a petitioner may file his or her petition within one year from “the

date on which the constitutional right asserted was initially recognized by the Supreme Court,”

provided that the newly recognized right is retroactively applicable. See 28 U.S.C. §

2244(d)(1)(C). In his objections to the Report and Recommendation, Fernandez argues that he is

owed statutory tolling on his first three claims. Notwithstanding, statutory tolling is not

appropriate on claims one through three.

From Fernandez’s petition, it is unclear which particular case Fernandez intended to rely

on for statutory tolling of his first and second claims. Accordingly, the Report and

Recommendation reviews several possibilities. See R&R 7-9. Following review of Fernandez’s

objections, it appears that Fernandez wishes to rely principally on Commonwealth v. Barnes, 151

A.3d 121 (Pa. 2016). 5 In Barnes, the Supreme Court of Pennsylvania addressed the legality of a

sentence imposed pursuant to 42 Pa. Cons. Stat. § 9712.1 in light of the United States Supreme

Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013). See Barnes, 151 A.3d at 123-

24. In Barnes, however, the court was not faced with an untimely habeas petition. See id.

Rather, the issue before the court was whether the petitioner waived his Alleyne claim by failing

to raise it in the first instance. See id. at 124.

Despite Fernandez’s objections, Barnes cannot serve as the basis for statutory tolling.

Barnes is a Pennsylvania Supreme Court decision, and the statutory tolling provisions of the

AEDPA cover only rights that are newly recognized by the Supreme Court of the United States.6

Therefore, statutory tolling of Fernandez’s first and second claims is not warranted under

Barnes.

As to Fernandez’s void for vagueness claim, claim three, Fernandez invokes two different

cases for the purpose of asserting that statutory tolling. Judging by his objections to the Report

5 Although the Report and Recommendation reviewed the possibility that Fernandez

intended to rely on Alleyne v. United States, 570 U.S. 99 (2013), Fernandez’s objections read as

if he did not intend to rely squarely on Alleyne. Rather, Fernandez seems to use Alleyne as a

vehicle for arguing that Barnes should be retroactively applicable to his case. See Obj. 2 (“[T]he

Commonwealth wrongly asserted the United States Supreme Court decision that controlled the

outcome of “Barnes.” In relying on Alleyne v. United States . . . , The Commonwealth

strategically kept this decision procedural in nature, and not subject to retroactivity.”).

Fernandez goes on to suggest that Barnes is a “substantive decision that is made procedural

because it is insulated by Alleyne . . . .” See id. Accordingly, this Court believes that Fernandez

intends to rely on Barnes to trigger statutory tolling of his claims. Furthermore, this Court agrees

with Magistrate Judge Rueter that Fernandez would not be entitled to statutory tolling under the

other cases and adopts the Magistrate Judge’s analysis.

6 Moreover, even if it were a Supreme Court decision, Barnes does not recognize a

petitioner’s right to have their untimely Alleyne challenge heard. Rather, Barnes dealt

exclusively with whether an Alleyne challenge to a mandatory sentence may be heard by an

appellate court despite a petitioner’s failure to raise the issue in the first instance in the lower

courts. See id. at 127. The subject of Barnes is waiver, not a petitioner’s failure to file within

the statute of limitations. See id. Accordingly, even if it were a Supreme Court decision, Barnes

would not warrant statutory tolling of Fernandez’s claims.

and Recommendation, he argues that Johnson v. United States, 576 U.S. 591 (2015) and Welch

v. United States, 136 S. Ct. 1257 (2016) warrant statutory tolling of his third claim. See Obj. 3.

Notwithstanding, these two cases are inapposite to Fernandez’s claims. Both Johnson and Welch

dealt with sentencing under the Armed Career Criminals Act (ACCA). See Welch, 136 S. Ct. at

1260-61 (deciding question of whether Johnson’s treatment of ACCA was substantive and

therefore retroactive); Johnson, 576 U.S. at 593 (deciding whether definition of “violent felony”

in ACCA “survives the Constitution’s prohibition of vague criminal laws”). Fernandez was not

sentenced pursuant to the ACCA; rather, he was sentenced pursuant to 42 Pa. Cons. Stat. §

9712.1. See Fernandez, 2016 WL 7495119, at *1 n.3. Therefore, neither Johnson nor Welsh

supplies a newly-recognized, retroactive constitutional right that is applicable to Fernandez’s

void-for-vagueness claim. For that reason, neither case warrants statutory tolling of Fernandez’s

claim.

Finally, in a supplemental brief filed after his objections to the Report and

Recommendation, Fernandez presents another case, arguing that its treatment of the void ab

initio doctrine is applicable to his instant petition. See Second Mot. to Supp., ECF No. 34 (citing

Commonwealth v. McIntyre, 232 A.3d 609 (Pa. 2020)). Notwithstanding, like Barnes, McIntyre

is a Pennsylvania Supreme Court case, and accordingly, it cannot be used as a basis for tolling

the habeas limitations period.7 Accordingly, tolling is not warranted under McIntyre.

2. Equitable Tolling

Fernandez next argues that the Court should apply equitable tolling to save his claims.

Principally, Fernandez asserts that he was misled into believing that he had done everything

7 Additionally, as was the case in Barnes, McIntyre did not involve an untimely petition.

Rather, it explicitly involved a “timely PCRA” petition. See id. at 613.

required of him to pursue his rights. See Obj. at 5. He states that “the Third Circuit Court of

Appeals ‘misled’ the Petitioner ‘into believing that he had done everything required of him.’”

See id. (citing Jones v. Martin, 195 F.3d 153, 159 (3d Cir. 1999)). Fernandez refers specifically

to the Third Circuit’s order dated September 10, 2019.8 See Obj. 5. Notwithstanding, even if

this Court takes Fernandez’s assertions as true, they do not warrant equitable tolling. The Third

Circuit’s Order comes six years beyond the August 22, 2013 deadline for Fernandez to file a

habeas petition. Fernandez cannot reasonably claim that an order six years after the fact was the

cause of his failure to file a timely petition.

Finding no grounds for statutory or equitable tolling, this Court, after de novo review,

adopts the Report and Recommendation as to claims one through three as set forth above.

Accordingly, claims one through three are dismissed as untimely.

B. Review of Claim 4 on the Merits

In his fourth claim, Fernandez asserts that he was denied parole in violation of numerous

rights. The Report and Recommendation reviewed Fernandez’s claim as potentially sounding in

his Fifth Amendment right against self-incrimination, Fourteenth Amendment due process rights,

and substantive due process rights.9 Following a de novo review of the claim on the merits, this

8 The September 10, 2019 Order, which is reproduced on this Court’s docket dated

December 6, 2019, directed this Court to treat the instant petition as having been filed on July 26,

2019. See Order 12/6/2019.

9 The Report and Recommendation notes that Fernandez’s fourth claim may also be

untimely. See R&R 11-12. Although the Third Circuit has provided guidance for measuring the

limitations period related to parole denial claims, the factual circumstances of the guidance differ

from those here. See McAleese v. Brennan, 483 F.3d 206 (3d Cir. 2007). In McAleese, the

petitioner sought to extend the habeas limitations period for filing his parole denial claim by

pointing to two parole denials that occurred after he had already filed his habeas petition. See id.

at 217-18 (noting petitioner advanced of “continuing violation” theory with respect to parole

denial claim). The Third Circuit rejected the application of a continuing violation theory to

parole denial claims. See id. Given that McAleese was denied parole only once prior to filing,

Court agrees that Fernandez fails to state a valid claim under any of these theories. Accordingly,

claim four is denied.

1. Fifth Amendment Right against Self-Incrimination Claim

To the extent Fernandez claims that the denial of parole violates his right against self-

incrimination, he has failed to state a valid claim. Fernandez must start by showing that he was

compelled to provide incriminating statements. See Roman, 675 F.3d at 214. Here, Fernandez’s

denial of parole for failing to accept responsibility or show remorse for his offenses—among

other reasons—does not rise to the level of compulsion required for a Fifth Amendment claim to

lie. See id. at 214-15. First, the Court reiterates that there is no right to parole under

Pennsylvania law. See id. Furthermore, Fernandez’s sentence was not lengthened by the denial

of parole insofar as it remains within the range prescribed by the sentencing court. See id.

Finally, the Court notes that denial of parole for these reasons is not an unusually unique or harsh

penalty. See id. Therefore, the penalty of parole denial, under the circumstances presented in

Fernandez’s case, does not rise to the level of compulsion required to state a Fifth Amendment

self-incrimination claim.

Accordingly, Fernandez’s right against self-incrimination was not violated by the parole

board’s denial of parole based on a finding that Fernandez did not accept responsibility or show

remorse for his offenses.

the Third Circuit determined that the clock began to run after McAleese was denied parole that

first time. See id.

Here, unlike McAleese, Fernandez was denied parole twice prior to his filing of the

instant petition: March 29, 2018 and March 18, 2019. Although the first denial occurred more

than a year before Fernandez filed his petition, the second is within the limitations period. For

that reason, this Court reviews the claim on the merits.

2. Fourteenth Amendment Due Process Claim

To the extent Fernandez claims that the denial of parole violates his due process rights, he

has also failed to state a claim. In order to make out a claim of this type, Fernandez would need

to “establish a protected liberty interest in the expectation of release on parole.” See Alford, 604

F. App’x at 94 (citing Swarthout v. Cooke, 562 U.S. 216, 220 (2011)). Pennsylvania does not

recognize a protected liberty interest in parole until the inmate has already been released on

parole. See id. (citing Nieves, 995 A.2d at 418). Therefore, because Fernandez does not have a

constitutionally protected liberty interest in parole, he cannot establish a Fourteenth Amendment

due process claim.

3. Fourteenth Amendment Substantive Due Process Claim

To the extent Fernandez claims that denial of parole violated his substantive due process

rights, his claim again fails. As a threshold matter, Fernandez needs to make out an interest

protected by the Fourteenth Amendment. See Grabiak, 276 F.3d at 213 (citing Nicholas, 227

F.3d at 139-40). As noted immediately above, Pennsylvania does not recognize a protected

liberty interest in parole unless and until the inmate is released on parole. See Alford, 604 F.

App’x at 94 (citing Nieves, 995 A.2d at 418). Thus, Fernandez fails to establish the threshold

requirement to a substantive due process claim.

Accordingly, having reviewed Fernandez’s fourth claim de novo, this Court adopts the

Report and Recommendation as to the fourth claim, and this claim is denied.

V. CERTIFICATE OF APPEALABILITY

“Under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), a ‘circuit

justice or judge’ may issue a COA [certificate of appealability] only if the petitioner ‘has made a

substantial showing of the denial of a constitutional right.’” Tomlin v. Britton, 448 F. App’x

224, 227 (3d Cir. 2011) (citing 28 U.S.C. § 2253(c)). “Where a district court has rejected the

constitutional claims on the merits, . . . the petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition

on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA

should issue when the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its procedural ruling.” Id.

Here, claims one through three are untimely, and Fernandez’s fourth claim is meritless.

Additionally, for the reasons set forth above, Fernandez has not made any substantial showing of

the denial of a constitutional right, nor would jurists of reason find this Court’s review of his

claims debatable or wrong. Therefore, a Certificate of Appealability shall not issue.

VI. CONCLUSION

Following de novo review of Fernandez’s claims, his petition is dismissed and denied in

its entirety. Fernandez’s first three claims are untimely, and none of them present appropriate

cases for statutory or equitable tolling. Fernandez’s fourth claim is without merit. Accordingly,

the claims are dismissed and denied. Finally, a Certificate of Appealability shall not issue.

A separate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.______

JOSEPH F. LEESON, JR.

United States District Judge