Dacenzo v. Mooney

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICO A. DACENZO, JR., :

:

Petitioner :

: CIVIL NO. 3:18 -CV-0892

v. :

: (Judge Caputo)

VINCENT MOONEY, et al., :

:

Respondents :

M E M O R A N D U M

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

1 Mr. Dacenzo is currently on parole. (ECF No. 19 at 3.)

2 In Montgomery, the Supreme Court decided Miller v. Alabama, 567 U.S. 460, 132 S.Ct.

2455, 183 L.Ed.2d 407 (2012), announced a new substantive constitutional rule retroactive in

cases on collateral review. Montgomery, ____ U.S. at ___ , 136 S.Ct. at 729. In Miller, the

Supreme Court held that that a juvenile convicted of homicide cannot be sentenced to life

imprisonment without parole without consideration of the juvenile's special circumstances at

sentencing.

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

3 In Alleyne, the Supreme Court held that any fact that increases the penalty for a crime

beyond the mandatory minimum sentence must be submitted to a jury. Alleyne, 570 U.S. at 108,

133 S.Ct. at 2158.

4 Also pending before the Court is Respondent’s motion for extension of time to file an

answer to the habeas petition. (ECF No. 16.) The Court will grant the motion and accept

Respondent’s Response (ECF No. 17) as timely filed.

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. See 61 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) (Alleyne does 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

5 See Miller, 197 F.3d at 652 (“[U]pon receipt of pro se pleadings challenging an inmate's

conviction or incarceration-whether styled as a § 2255 motion or not - a district court should issue

a notice to the petitioner regarding the effect of his pleadings. This notice should advise the

petitioner that he can (1) have his motion ruled upon as filed; (2) if his motion is not styled as a §

2255 motion have his motion recharacterized as a § 2255 motion and heard as such, but lose his

ability to file successive petitions absent certification by the court of appeals; or (3) withdraw the

motion, and file one all-inclusive § 2255 petition within the one-year statutory period.”); Mason,

supra (extending Miller’s notice requirements to § 2254 actions and vacating the district court’s

dismissal of a § 2254 petition because Mason, as a pro se petitioner, was not given the required

Miller notice and instructions); see also, Holden v. Mechling, 133 F. App’x. 21 (3d Cir. 2005)

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. See 28

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 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 the right has been

newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(affirming the district court’s dismissal of petitioner’s § 2254 writ as untimely during a screening

pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District

Courts, when the court had previously issued “the required” Miller notice).

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

28 U.S.C. § 2244(d)(1); see Wall v. Kholi, 562 U.S. 545, 550, 131 S.Ct. 1278, 1283, 179

L.Ed.2d 252 (2011); see also Jenkins v. Supt. of Laurel Highlands, 705 F.3d 80, 84 (3d

Cir. 2013). Where a defendant fails to file post-sentence motions, his judgment becomes

final thirty days from the date of sentencing. See 42 PA. CON. STAT. § 9545(b)(3); Pa. R.

Crim. P. 720(A)(3).

The one-year AEDPA limitations period is subject to both statutory and equitable

tolling. Statutory tolling for a federal habeas claim occurs during the time “a properly filed

application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending …” 28 U.S.C. § 2244(d)(2). “[A] petition is properly filed

when ‘its delivery and acceptance are in compliance with the applicable laws and rules

governing filing.' A properly filed petition must be in the proper form, and be timely

delivered to the proper court or office.” Satterfield v. Johnson, 434 F.3d 185, 101-192 (3d

Cir. 2006) (quoting Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213

(2000)) (internal citations omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 417, 125

S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005) (where the state court rejects petitioner’s

PCRA petition as untimely, the petition “was not ‘properly filed' and [petitioner is] not

entitled to statutory tolling under § 2244(d)(2)”). A state post-conviction motion or other

collateral review is “pending” from the date it is filed until the date the court rules on the

petition as well as “the time during which an appeal could be filed even if the appeal is

not eventually filed.” Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000).

The limitations period may be subject to equitable tolling when the petitioner shows

that he “has been pursuing his rights diligently,” and yet “some extraordinary

circumstance stood in his way and prevented timely filing” of his habeas petition. Holland

v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010); Ross v.

Varano, 712 F.3d 784, 803 (3d Cir. 2013). “However, courts need to be ‘sparing in their

use of' the doctrine,” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011) (quoting Jones

v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)), as it does not extend to a “garden variety

claim of excusable neglect.” Schlueter v. Varner, 384 F.3d 69, 83 (3d Cir. 2004) (citing

Irwin v. Dep’t Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 96, 112 L.Ed.2d 435

(1990)).

The diligence required for equitable tolling is reasonable diligence, not maximum,

extreme, or exceptional diligence. Holland, 560 U.S. at 653, 130 S.Ct. at 2565. “This

obligation does not pertain solely to the filing of the federal habeas petition, rather it is an

obligation that exists during the period the appellant is exhausting state court remedies

as well.” Lacava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (citing Jones v. Morton, 195

F.3d 153, 160 (3d Cir. 1999)). “[T]he due diligence inquiry is fact-specific and depends

on the circumstances faced by the particular petitioner”. Munchinski v. Wilson, 694 F.3d

308, 331 (3d Cir. 2012). The Third Circuit Court of Appeals has found extraordinary

circumstances prevented a petitioner from pursuing his habeas claims when: (1) the

respondent actively misled the petitioner; (2) the petitioner has in some extraordinary way

been prevented from asserting his rights; (3) the petitioner has timely asserted his rights

mistakenly in the wrong forum, see Jones, 195 F.3d at 159; or (4) the court has mislead

the petitioner regarding the steps that he needs to take to preserve a claim. See Brinson

v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). Even where extraordinary circumstances

are found, “if the person seeking equitable tolling has not exercised reasonable diligence

in attempting to file after the extraordinary circumstances began, the link of causation

between the extraordinary circumstances and the failure to file is broken, and the

extraordinary circumstances therefore did not prevent timely filing.” Brown v. Shannon,

322 F.3d 768, 773 (3d Cir 2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.

2000)).

The Supreme Court has also recognized that a credible showing of actual

innocence may allow a prisoner to pursue his constitutional claims on the merits

notwithstanding the existence of “a procedural bar … or … expiration of the statute of

limitations” under the miscarriage of justice exception. See McQuiggin v. Perkins, 569

U.S. 383, 386, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013). But actual innocence

claims are “rarely successful.” Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865,

130 L.Ed.2d 808 (1995). “[T]he fundamental miscarriage of justice exception applies only

in cases of actual innocence.” Coleman v. Greene, 845 F.3d 73, 77 (3d Cir. 2017) (citing

McQuiggin, 569 U.S. at 386, 133 S.Ct. at 1928). “[A]ctual innocence requires a showing

of factual innocence, not mere legal insufficiency.” Swenger v. Chesney, 294 F.3d 506,

523 (3d Cir. 2002). To prevail under this standard, the petitioner must show that “it is

more likely than not that no reasonable juror would have convicted him in the light of new

evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. at 867. “Without any new evidence of

innocence, even the existence of a concededly meritorious constitutional violation is not

in itself sufficient to establish a miscarriage of justice that would allow a habeas court to

reach the merits of a barred claim.” Id. at 316, 115 S.Ct. at 861.

B. Mr. Dacenzo’s Petition is Time-Barred

Mr. Dacenzo received his sentence on January 15, 2010. His judgment of

sentence became final on February 15, 2010, at the expiration of the thirty-day period for

him to file a direct appeal to the Superior Court of Pennsylvania. See Pa. R.A.P. 903; 42

PA. CONS. STAT. § 9545(b)(3). The one-year period for the statute of limitations

commenced running as of that date. Hence, his federal petition, filed on April 21, 2018,

is clearly untimely. However, the Court’s analysis does not end here as we must consider

statutory, including the possibility of an alternative starting date of the one-year limitations

period pursuant to § 2244(d)(1)(C), as well as equitable tolling considerations.

Mr. Dacenzo’s one-year statute of limitations ran from February 15, 2010 until

February 15, 2011. The state courts determined Mr. Dacenzo’s first PCRA Petition, filed

August 13, 2012, was untimely without exception. See Commonwealth v. Dacenzo, No.

172 MDA 2013, 2013 WL 11254552 (Pa. Super. Ct. Sept. 19, 2013), aff’d, 625 Pa. 633,

89 A.3d 659 (Pa. 2014) (Table). Mr. Dacenzo’s second PCRA Petition seeking the

sentencing court to declared him eligible for the Recidivism Risk Reduction Incentive

(RRRI) Act, 61 PA. CON. STAT. §4501 et seq., was also deemed untimely and no time-bar

exception was found to apply. See Commonwealth v. Dacenzo, No. 80 MDA 2015, 2015

WL 6824985 (Pa. Super. Ct. Jul. 21, 2015). Mr. Dacenzo’s third PCRA, filed February

23, 2016, faired no better. See Commonwealth v. Dacenzo, No. 237 MDA 2017, 2017

WL 3711064 (Pa. Super. Ct. Aug. 29, 2017), appeal denied, 645 Pa. 735, 182 A.3d 448

(Pa. 2018) (Table). None of Mr. Dacenzo’s untimely PCRA Petitions tolled the AEDPA

statute of limitations because an untimely PCRA petition is not “properly filed” within the

meaning of the AEDPA statute. See Pace, 544 U.S. at 417, 125 S.Ct. at 1814.

Before concluding that Mr. Dacenzo’s Petition is untimely, the Court must

determine whether, as he suggests, he is entitled to an alternative starting point of the

one-year limitations period pursuant to § 2244(d)(1)(C). Mr. Dacenzo claims he filed this

third PCRA petition within sixty days of the Supreme Court’s decision in Montgomery,

which he argues declared the holding of Alleyne retroactively applicable to cases on

collateral review. Mr. Dacenzo filed his third PCRA petition on February 23, 2016. (ECF

No. 1 at 5 and 13.) Under § 2244(d)(1)(C), Mr. Dacenzo’s Petition is timely if: (1) it relies

on a newly recognized constitutional right by the Supreme Court, § 2244(d)(1)(C); (2) the

Supreme Court has declared the newly recognized right is retroactively applicable to

cases on collateral review, id.; and (3) it is filed within one year from ““from the date on

which the right he asserts was initially recognized” by the Supreme Court even if is not

made retroactive until later, Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478,

2482, 162 L.Ed.2d 343 (2005).

In undertaking this assessment, the Court must determine whether any of the

cases cited by Mr. Dacenzo assert a newly recognized constitutional right made

retroactive to cases on collateral review prior to calculating the alternative

commencement of the limitations period. The Third Circuit Court of Appeals has

determined that Alleyne is not retroactive to cases on collateral appeal.6 See United

States v. Winkleman, 746 F.3d 134, 136 (3d Cir. 2014) (Alleyne not retroactive because

“a new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme

6 Even if Alleyne was held to apply retroactively, it could not revive the limitations period

in this matter as it was decided June 17, 2013. Mr. Dacenzo did not file his third PCRA Petition

or his current habeas petition until 2016. Thus, he could not benefit of a later start date of his 1-

year statue of limitations based on Alleyne.

Court holds it to be retroactive”) (quoting Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478,

150 L.Ed.2d 632 (2001)); see also United States v. Reyes, 755 F.3d 212, 212 (3d Cir.

2014) (“[T]he rule of criminal procedure announced by the Supreme Court in Alleyne does

not apply retroactively to cases on collateral review.”) Mr. Dacenzo also cites

Montgomery to restart his one-year limitations period. However, Montgomery did not

announce a new constitutional right, it held that the rule announced in Miller was

retroactively applicable to cases on collateral review. Montgomery, ____ U.S. at ____,

136 S.Ct. at 732. The Supreme Court decided Miller on June 25, 2012. Thus, even if

applicable to Mr. Dacenzo, his Petition is still patently untimely as it was not filed within

sixty days of Miller.7 Dodd, 545 U.S. at 357, 125 S.Ct. at 2482. Finally, Mr. Dacenzo’s

reliance on the Montgomery to establish an alternative start date of his 1-year limitations

period, is also misplaced. As noted above, Montgomery did not recognize a new rule of

constitutional law; rather, it applied the rule set forth by the Supreme Court in Miller. Thus,

absent equitable tolling of the limitations period, Mr. Dacenzo’s Petition is untimely.

Unfortunately, Mr. Dacenzo has failed to raise equitable tolling or allege any facts

or circumstances that would warrant its application in this case. See ECF No. 1 at 13 and

ECF No. 19. The fact that he is untrained in the law, was proceeding pro se, or may have

been unaware of the statute of limitations for a certain period does not warrant tolling.

7 Moreover, Mr. Dacenzo does not suggest how Miller is applicable to his case. Mr.

Dacenzo does not claim he was a juvenile when charged with possession of child pornography.

A review of the docket sheet in his criminal case confirms he was not a juvenile when charged.

The Supreme Court in Miller did not recognize an Eighth Amendment violation for a mandatory

sentencing scheme as to adults but juveniles, and only juveniles. As stated by the Pennsylvania

Superior Court, “Miller has no applicability to the instant case.” Dacenzo, 2017 WL 3711064, at

n. 12. This Court agrees as Mr. Dacenzo was not sentenced to life without the possibility of parole

as a juvenile, the right recognized by Miller and held retroactive in Montgomery, does not apply

to him.

See Merritt v. Blaine, 326 F.3d 157, 170 (3d Cir. 2003). Accordingly, Petitioner is not

entitled to equitable tolling of the limitations period.

The Court also notes that Mr. Dacenzo does not claim that he is actually innocent

of the crimes for which he was convicted. Therefore, he is not excused from the

procedural bar of the statute of limitations under the miscarriage-of-justice exception. Mr.

Dacenzo’s habeas Petition therefore is time-barred without exception.

III. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate

of appealability, appeal may not be taken from a final order in a proceeding under 28

U.S.C. § 2254. A certificate of appealability may issue only if the applicant has made a

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could disagree

with the district court's resolution of his constitutional claims or that jurists could conclude

the issues presented are adequate to deserve encouragement to proceed further.” Miller-

El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “When the district

court denies a habeas petition on procedural grounds without reaching the prisoner’s

underlying constitutional claim, a [certificate of appealability] 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.” Slack v.

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). In the

instant matter, jurists of reason would not find the disposition of Mr. Dacenzo’s petition

debatable. As such, the court will not issue a certificate of appealability in this case.

IV. Conclusion

For the reasons set forth above, Mr. Dacenzo’s Petition for writ of habeas corpus

will be dismissed as untimely.

An appropriate order follows.

Date: October 17, 2019 /s/ A. Richard Caputo

A. RICHARD CAPUTO

United States District Judge