The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THEODORE J. DAVENPORT, JR., :
Petitioner, : 3:19-cv-2155
:
v. : Hon. John E. Jones III
:
ERIC TICE, PENNSYLVANIA :
ATTORNEY GENERAL OFFICE, :
Respondents. :
MEMORANDUM
June 1, 2020
On December 19, 2019, Petitioner Theodore J. Davenport, Jr.,
(“Davenport”), filed the instant the instant petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging convictions entered in the Court of
Common Pleas of Dauphin County, Pennsylvania in 2011. (Doc. 1). Because it
appeared that the petition may be barred by the statute of limitations, in accordance
with United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc), on
January 23, 2020, the Court directed the parties to address the timeliness of the
petition and any applicable statutory and/or equitable tolling of the statute of
limitations. (Doc. 7). Respondents filed their response on February 7, 2020.
(Doc. 10). Davenport filed his traverse on May 15, 2020. (Doc. 20). The petition
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is ripe for disposition and, for the reasons set forth below, will be dismissed as
untimely.
I. BACKGROUND
In 2010, Davenport was charged in the Court of Common Pleas of Dauphin
County in Criminal Cases CP-22-CR-6114-2010, and CP-22-CR-6115-2010, with
two counts of robbery. (Docs 10-1, 10-2). On August 29, 2011, he pled guilty to
two counts of robbery. (Doc. 10-6, p. 1; Commonwealth v. Davenport, 1605 MDA
2013, 2014 WL 10936923 (Pa. Super. May 19, 2014)). On that same date, he was
sentenced to a mandatory minimum term of 120 to 240 months of imprisonment,
and the sentences were ordered to run concurrently. (Id.). Davenport did not
appeal his judgment of sentence.
On March 5, 2012, he filed a Post Conviction Relief Act (“PCRA”) petition
pursuant to 42 PA. CONS. STAT. §§ 9541-46. On August 20, 2013, the PCRA
court dismissed the petition. (Doc. 10-6, p. 1). On May 19, 2014, the Superior
Court of Pennsylvania (“Superior Court”) affirmed. No further appeal was taken.
In November 2015, Davenport pursued private complaints of criminal
misconduct against detectives and police officers, alleging they conspired with the
Magisterial District Judge to approve documents related to his arrest. (Doc. 10-
10). The complaints were received in the district attorney’s office on November
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12, 2015. (Doc. 10-10, p. 1). On March 15, 2016, following an investigation, the
Dauphin County District Attorney’s Office declined to prosecute the complaints.
(Doc. 10-8, p. 55). Davenport filed a petition for review with the Court of
Common Pleas of Dauphin County. (Doc. 10-11). The court denied the petition.
(Doc. 10-8, pp. 51-54). He appealed to the Superior Court. The Superior Court
affirmed the trial court’s decision to deny the petition for review on March 10,
2017. (Doc. 10, ¶ 14). His subsequent appeal to the Supreme Court of
Pennsylvania was denied on September 21, 2017. (Id. at 15).
Davenport filed the instant petition on December 19, 2019. (Doc. 1).
II. DISCUSSION
The court shall “entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely
filed under the stringent standards set forth in the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (Apr.
24, 1996). See 28 U.S.C. § 2244(d) (1). Specifically, a state prisoner requesting
habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that
provides, in relevant part, as follows:
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(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;
. . .
(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 subsection.
28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).
Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment
does not become final until appeals have been exhausted or the time for appeal has
expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
The state court sentenced Davenport on August 29, 2011. He failed to
pursue a direct appeal. Hence, on September 28, 2011, after the expiration of the
thirty days allotted to pursue a direct appeal, in accordance with 28 U.S.C. §
2244(d)(1)(A), his judgment of sentence became final. The one-year AEDPA
statute of limitations period commenced running as of that date and expired one
year later, on September 28, 2012. Therefore, the present petition, filed on
December 19, 2019, is patently untimely.
However, the limitation period is not “an inflexible rule requiring dismissal
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whenever AEDPA’s one-year clock has run.” Day v. McDonough, 547 U.S. 198,
208 (2006). “Instead, the limitation period is subject to both statutory and
equitable tolling.” Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85
(3d Cir. 2013).
A. Statutory Tolling
Section 2244(d)(2) tolls the one-year statute of limitations with respect to 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.” 28
U.S.C. § 2244(d)(2). The Third Circuit Court of Appeals has defined “pending” as
the time during which a petitioner may seek discretionary state court review,
whether or not such review is sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir.
2000).
Davenport successfully tolled the statute of limitations on March 5, 2012,
when he filed a timely PCRA petition. At that point, approximately 159 days of the
one year limitations period had elapsed. The statute remained tolled until June 18,
2014, thirty days after the Superior Court affirmed the denial of PCRA relief.
Davenport was required to file his petition in federal court on or before January 10,
2015, 206 days after the conclusion of the PCRA proceedings. The instant petition
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filed on December 19, 2019, 1804 days after the conclusion of the PCRA
proceedings, is therefore untimely.
To the extent that Davenport pursued, private criminal complaints, such
action did not toll the statute. Statutory tolling is limited to 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.” 28 U.S.C. § 2244(d)(2).
The petition is untimely despite the initial statutory tolling of the limitations
period.
B. Equitable Tolling
Equitable tolling stops the clock when extraordinary circumstances prevent a
petitioner from timely filing, thereby rendering strict enforcement of the one-year
limitations period unfair. Wood v. Milyard, 566 U.S. 463, 469 n.3 (2012); see also
Holland v. Florida, 560 U.S. 631 (2010). “Equitable tolling of the limitations
period is to be used sparingly and only in “extraordinary” and “rare”
circumstances. See Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006);
LaCava v. Kyler, 398 F.3d 271, 274-75 (3d Cir. 2005). Generally, a litigant
seeking equitable tolling must establish two elements: (1) that he has been
pursuing his rights diligently; and (2) that some extraordinary circumstance stood
in his way.” Pace, 544 at 418.
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With respect to the diligent pursuit of rights, he must demonstrate that he
exercised reasonable diligence in investigating and bringing the claims. See
Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002). Mere excusable neglect is
not sufficient. See LaCava, 398 F.3d at 276. Moreover, “the party seeking
equitable tolling must have acted with reasonable diligence throughout the period
he seeks to toll.” Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (quoting
Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)).
Extraordinary circumstances have been found where (1) the respondent has
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 misled a party regarding the steps that the party needs to take to preserve a
claim, see Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). Significantly,
even where extraordinary circumstances exist, “[i]f 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)).
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Davenport failed to exercise reasonable diligence throughout the limitations
period. He waited 159 days after the conclusion of direct appeal proceedings to
file his PCRA petition. Between the conclusion of PCRA proceedings and the
filing of his federal petition, approximately 2040 more days elapsed. And the
Court is unpersuaded that his pursuit of private criminal complaints demonstrates
the exercise of reasonable diligence. Approximately 531 days elapsed between the
conclusion of his PCRA proceedings and the filing of those complaints with the
district attorney’s office. Further, 819 additional days elapsed between the
conclusion of the court proceedings related to those complaints and the filing of the
instant petition.
In addition to his failure to demonstrate the exercise of reasonable diligence
in bringing his federal petition, he fails to demonstrate that extraordinary
circumstances obstructed his pursuit of relief in either state or federal court. There
is no indication that he was actively misled, that he was in some extraordinary way
prevented from asserting his rights, that he timely asserted his rights mistakenly in
the wrong forum, or that he was misled by the court regarding the steps that he
needed to take to preserve his claims. Hence, equitable tolling of the AEDPA
statute of limitations is not warranted.
We now turn to miscarriage of justice exception and his claim of actual
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innocence. Although the fundamental miscarriage of justice or “actual innocence”
exception was previously used to excuse procedural default, the United States
Supreme Court has held that a convincing showing of actual innocence may excuse
the federal limitations period. McQuiggin v. Perkins, 569 U.S. 383 (2013).
McQuiggin made it clear that such an exception is very rare, noting that the
petitioner “must show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.” Id. at 399 (citing Schlup v.
Delo, 513 U.S. 298, 327 (1995)). “To be credible a claim of actual innocence must
be based on reliable evidence not presented at trial.” Schlup, 513 U.S. at 324;
Calderon v. Thompson, 523 U.S. 558, 559 (1998). “Proving actual innocence based
on new evidence requires the petitioner to demonstrate (1) new evidence (2) that is
reliable and (3) so probative of innocence that no reasonable juror would have
convicted the petitioner.” Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012)
(citing Schlup, 513 U.S. at 327). “‘[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of the new evidence,
no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.’ Schlup, 513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S., at
538, 126 S.Ct. 2064 (emphasizing that the Schlup standard is “demanding” and
seldom met).” McQuiggin, 569 U.S. at 386.
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Davenport fails to provide any new reliable evidence to support his claim of
actual innocence. He argues that the district attorney’s office “failed to review or
request to see any of petitioner’s evidence, in order for petition to prove his
innocence.” (Doc. 20, ¶ 18). This argument is based on the failure of the state
courts to provide him the relief that he sought in his private criminal complaints.
The validity of those complaints has been fully litigated in the state courts and
found to be without merit.
“The gateway actual innocence standard is ‘demanding’ and satisfied only in
the ‘rare’ and ‘extraordinary’ case where ‘a petition presents evidence of innocence
so strong that a court cannot have confidence in the outcome of the trial unless the
court is also satisfied that the trial was free of nonharmless constitutional error.’ ”
Reeves v. Fayette SCI, 897 F.3d 154 (3d Cir. 2018) (quoting McQuiggin, 569 U.S.
at 392). Davenport provides no such evidence in support of his claim. Nor can
any be extracted from the claims raised in his petition. Accordingly, he has not
demonstrated that the “actual innocence” exception to the AEDPA statute of
limitations applies.
III. Conclusion
For the reasons set forth above, the petition for writ of habeas corpus will be
dismissed as untimely.
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IV. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a
certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA 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 (2003).
“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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of
reason would not find the procedural disposition of this case debatable.
Accordingly, no COA will issue.
A separate Order will issue.
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