Middleton v. Warden, SCI Albion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM PATRICK MIDDLETON, No. 3:19-CV-01594

Petitioner, (Judge Brann)

v.

WARDEN, SCI ALBION, et al.,

Respondents.

MEMORANDUM OPINION

DECEMBER 2, 2020

Petitioner William Patrick Middleton, a state prisoner presently confined at

the State Correctional Institution at Albion in Albion, Pennsylvania, filed this second

amended petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging

his state conviction on numerous grounds.1 Respondents filed an answer raising as

an affirmative defense the statute of limitations, arguing that the petition is

untimely.2 Petitioner filed a reply arguing that his petition is timely based on a

recently drafted affidavit from his trial counsel.3 For the reasons discussed below,

the Court will dismiss the petition as time-barred under 28 U.S.C. § 2244(d).

1 Doc. 17.

2 Doc. 37.

I. BACKGROUND

On September 29, 1976, Petitioner escaped from the United States

Penitentiary in Allenwood, Pennsylvania, where he was incarcerated on a federal

conviction.4 A third party assisted his escape and drove him to Mountoursville,

Lycoming County, Pennsylvania.5 The next day, Petitioner kidnapped, assaulted,

and strangled a woman in a field; the woman later died of her injuries.6 After the

assault, Petitioner took the woman’s purse and automobile, and drove to

Philadelphia, where he engaged in an armed robbery and was finally apprehended.7

Petitioner was charged with criminal homicide, aggravated assault, robbery,

kidnapping, and theft in the Court of Common Pleas of Lycoming County.8 Upon

Petitioner’s request, the case was transferred to the Court of Common Pleas of

Lebanon County.9 A jury trial in the matter commenced on or about May 25, 1977;

however, after the first witness testified, the parties reached a plea agreement.10

Under the terms of the plea agreement, Petitioner would plead guilty to second

degree murder, robbery, and kidnapping.11 In addition, the prosecution agreed to

contact the Federal Bureau of Prisons so that Petitioner could serve the remainder of

4 Doc. 37 at 14.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id. at 15.

his federal sentence in a Pennsylvania state correctional institution. The local

prosecutor also agreed to contact the District Attorney of Philadelphia County to

request that Petitioner not be prosecuted for the armed robbery committed there.12

Finally, the prosecution agreed on the record that “the other charges in the Bills of

Information, upon accepted of the plea and sentence thereon, will be nolle-

prossed.”13

That same day, the state trial judge engaged in a plea colloquy with Petitioner

and ultimately accepted his plea of guilty.14 The next day, Petitioner was sentenced

to life imprisonment with no minimum for parole eligibility for the murder

conviction and concurrent ten to twenty year sentences for the kidnapping and

robbery convictions.15 Petitioner did not file a direct appeal or any post-sentencing

motions.16

Since 1977, Petitioner has filed three Pennsylvania Post-Conviction Relief

Act (“PCRA”) petitions in his court of conviction. The first was filed on July 20,

1981, challenging his guilty plea and alleging that his trial counsel was ineffective

for failing to challenge errors related to the guilty plea.17 That petition was denied,

and the denial was affirmed by the Superior Court of Pennsylvania on May 4, 1984.18

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

Petitioner did not file a petition for allowance of appeal with the Supreme Court of

Pennsylvania.19

On March 21, 1994, Petitioner filed his second PCRA petitioner, in which he

raised the ineffectiveness of his counsel, the adequacy of his guilty plea, and the

prosecution’s alleged violation of the plea agreement when it failed to dismiss the

federal escape charge.20 The PCRA court denied the petition finding that the claims

were either previously litigated or waived; this denial was also affirmed by the

Superior Court.21 Petitioner filed a petition for allowance of appeal with the

Supreme Court of Pennsylvania; that petition was denied on April 30, 1996.22

On February 6, 2019, Petitioner filed his third PCRA petition, in which he

argued that his plea agreement was unlawfully induced and breached by the

prosecution, his prior counsel was ineffective, and further alleged that he is actually

innocent.23 The PCRA court determined that petition was untimely and provided

Petitioner with notice of its intent to dismiss the petition.24 In response, Petitioner

argued that his petition was timely based on an affidavit received from his trial

counsel on December 13, 2018.25 The PCRA court disagreed and dismissed the

19 Id. at 16.

20 Id.

21 Id.

22 Id.

23 Id.

24 Id.

petition as untimely on April 3, 2019.26 Petitioner then appealed the denial to the

Superior Court on April 9, 2019.27 The Superior Court affirmed the dismissal of the

petition on November 26, 2019, also finding that the petition was untimely.28

Regarding the affidavit proffered by Petitioner, the Superior Court found that the

facts contained in it were “simply not new,” and that even if they were, Petitioner

had failed to establish that he had acted with the diligence necessary for the

Pennsylvania state timeliness exception to apply.29

Petitioner then proceeded to file the instant habeas petition on September 16,

2019,30 and subsequently filed a second amended petition on January 31, 2020.31 In

Petitioner’s reply, he argues that his trial counsel’s affidavit, signed on December

13, 2018 in which trial counsel admits that he should have ensured that the federal

escape charge was dismissed,32 is a new factual predicate that causes a new one-year

limitation period to run pursuant to 28 U.S.C. § 2244(d)(1)(D).33

26 Id.

27 Id.

28 Id. at 18.

29 Id.

30 See Doc. 1

31 Doc. 17

32 See Doc. 37-1 at 134.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides the

applicable statute of limitations for Petitioner’s habeas petition, and it provides, in

pertinent part:

(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 a 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.34

Pursuant to § 2244(d), evaluation of the timeliness of a § 2254 petition

requires a determination of (1), when the pertinent judgment became “final,” and,

(2), the period of time during which an application for state post-conviction relief

was “properly filed” and “pending.” The judgment is determined to be final by the

conclusion of direct review, or the expiration of time for seeking such review,

including the ninety-day period for filing a petition for writ of certiorari in the

Supreme Court of the United States.35

34 28 U.S.C. § 2244(d). See also Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).

Here, Petitioner was sentenced on his underlying criminal charges on May 26,

1977. He did not file a post-sentencing motion or a direct appeal, and therefore, his

conviction became final on or about June 25, 1977.36 Because Petitioner’s

conviction became final before the enactment of AEDPA, however, Petitioner was

granted a one year period of limitation commencing on April 24, 1996, the effective

date of AEDPA, to file an a timely § 2254 petition.37 That period expired on or about

April 24, 1997.

Before concluding that the petition is untimely, however, the Court must

determine whether Petitioner would be entitled to an alternative starting point for the

one-year limitations period because he argues that his trial counsel’s affidavit creates

a new factual predicate for which he is entitled to another one year period of

limitations.

Section 2244(d)(1)(D) provides an additional one-year period of limitations

for bringing a § 2254 habeas petition from “the date on which the factual predicate

of the claim or claims presented could have been discovered through the exercise of

due diligence.” “[I]t is appropriate to place at least some burden of pleading and

production on a habeas petitioner to show that the date for the running of the AEDPA

limitations period should . . . state from the date on which a factual predicate could

36 See Pa. R. App. P. 903 (providing thirty days in which to file a direct appeal).

have first been discovered.”38 “This is so because it would seem that such

information is more peculiarly within the party asserting/arguing the existence of

such impediment and/or factual predicate, i.e., the habeas petitioner.”39

In this matter, Petitioner’s affidavit from his trial counsel dated December 13,

2018 is not newly discovered evidence nor a factual predicate that would make his

petition timely under § 2244(d)(1)(D). That trial counsel should have ensured the

dismissal of the federal escape charged has been known to Petitioner for decades

now, and according to the record, was considered and litigated in his second PCRA

petition and proceedings in 1994. The Court has reviewed the transcript of the

second PCRA proceedings, and it is abundantly clear that Petitioner knew that his

federal escape charges had not been dismissed and also knew the impact that failure

had on his guilty plea agreement.

That Petitioner now has produced a more-recent affidavit to memorialize

these issues is not the sort of factual predicate discovered by due diligence that would

38 United States ex rel. Lipchey v. Corbett, No. No. 06-cv-989, 2007 WL 2428662, at *5 (W.D.

Pa. Aug. 22, 2007) (citing Jackson v. Sec’y for Dep’t of Corrs., 292 F.3d 1347, 1349 (11th Cir.

2002). See also Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002) (“The purpose of

requiring the defendant to plead available affirmative defenses in his answer is to avoid

surprise and undue prejudice by providing the plaintiff with notice and an opportunity to

demonstrate why the affirmative defense should not succeed.”); Smith v. Duncan, 297 F.3d

809, 814 (9th Cir.2002) (“[O]nce a petitioner is given adequate notice and opportunity to

respond to allegations that his petition is subject to dismissal pursuant to AEDPA’s statute of

limitations, petitioner has the burden of providing an adequate response”), abrogation on other

grounds recognized in Moreno v. Harrison, 245 F. App’x 606 (9th Cir. 2007).

permit Petitioner to proceed under § 2244(d)(1)(D). As such, the second amended

petition is untimely.

Next, the Court must determine whether equitable tolling may apply to

Petitioner’s untimely petition. In Holland v. Florida, the Supreme Court of the

United States held that AEDPA’s one-year limitations period is subject to equitable

tolling in appropriate cases, on a case-by-case basis.40 A litigant seeking equitable

tolling bears the burden of establishing two elements: “(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his

way.”41

The diligence required for equitable tolling is reasonable diligence, not

maximum, extreme, or exceptional diligence.42 “This obligation does not pertain

solely to the filing of the federal habeas petition, rather it is an obligation that exists

during the period appellant is exhausting state court remedies as well.”43 Reasonable

diligence is examined under a subjective test, and it must be considered in light of

the particular circumstances of the case.44

40 560 U.S. 631, 649-50 (2010). See Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013).

41 Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). See also

Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 89 (3d Cir. 2013).

42 Holland, 560 U.S. at 653.

43 LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (citation omitted). See also Alicia v.

Karestes, 389 F. App'x 118, 122 (3d Cir. 2010) (holding that the “obligation to act diligently

pertains to both the federal habeas claim and the period in which the petitioner exhausts state

court remedies”).

44 See Ross, 712 F.3d at 799; Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (“Due diligence

does not require the maximum feasible diligence, but it does require diligence in the

A Court also must determine whether extraordinary circumstances exist to

warrant equitable tolling. “[G]arden variety claim[s] of excusable neglect” by a

petitioner’s attorney do not generally present an extraordinary circumstance meriting

equitable tolling.45 Rather, equitable tolling can be triggered only when “the

principles of equity would make the rigid application of a limitation period unfair,

such as when a state prisoner faces extraordinary circumstances that prevent him

from filing a timely habeas petition and the prisoner has exercised reasonable

diligence in attempting to investigate and bring his claims.”46

I note that, extraordinary circumstances have been found only 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, or (4) the court itself has

misled a party regarding the steps that the party needs to take to preserve a claim.47

Nevertheless, it must be restated that, even where extraordinary circumstances do

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

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

45 Holland, 560 U.S. at 651 (citations omitted). See also Merritt v. Blaine, 326 F.3d 157, 168 (3d

Cir. 2003).

46 LaCava, 398 F.3d at 275–276. See also Holland, 560 U.S. at 648–49 (relying on Pace, 544

U.S. at 418); Jenkins, 705 F.3d at 89 (holding that equitable tolling should be applied sparingly,

and only when the “principles of equity would make the rigid application of a limitation period

unfair”).

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

and the extraordinary circumstances therefore did not prevent timely filing.”48

Here, Petitioner was put on notice regarding the untimeliness of his federal

habeas petition by Respondent’s answer and he had an opportunity to address both

the untimeliness and arguments in favor of tolling in his reply. Petitioner offers no

explanation for the delay in bringing his federal habeas petition which would allow

this Court to consider equitable tolling. Furthermore, the Court has reviewed

Petitioner’s filings and can discern no circumstance which could potentially trigger

equitable tolling. In light of the fact that Petitioner is proceeding pro se, the Court

will permit Petitioner thirty (30) days in which to present the Court with any

argument he wishes to make regarding equitable tolling. Failure to do so will result

in the Petition being dismissed with prejudice.

III. CERTIFICATE OF APPEALABILITY

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

certificate of appealability, an appeal may not be taken from a final order in a

proceeding under 28 U.S.C. § 2254. A certificate of appealability (“COA”) may

issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.”49 “A petitioner satisfies this standard by demonstrating that

jurists of reason could disagree with the district court's resolution of his

48 Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d

129, 134 (2d Cir. 2000)).

constitutional claims or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.”50

“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.”51

Here, jurists of reason would not find it debatable whether this Court is correct

in its procedural ruling. No certificate of appealability shall issue.

IV. CONCLUSION

For the reasons set forth above, this Court finds that the § 2254 second

amended petition should be dismissed as untimely filed under 28 U.S.C. § 2244(d);

leave to plead over regarding the equitable tolling issue is permitted. A certificate

of appealability shall not issue.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

50 Miller–El v. Cockrell, 537 U.S. 322, 327 (2003) (citation omitted), cited in United States v.

Williams, 536 F. App’x 169, 171 (3d Cir. 2013).