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

FEBRUARY 9, 2021

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. § 2254.1 The Court

previously dismissed the petition without prejudice as untimely, but permitted

Petitioner an additional period of time in which to present any argument regarding

equitable tolling.2 Petitioner has now filed a supplemental brief regarding equitable

tolling.3 For the reasons discussed below, Petitioner’s circumstances do not warrant

equitable tolling, and the Court will dismiss the petition with prejudice as time-

barred under 28 U.S.C. § 2244(d).

1 Doc. 17.

2 Docs. 43 (mem.), 44 (order).

I. BACKGROUND

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

Penitentiary in Allenwood, Pennsylvania, where he was incarcerated on an unknown

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

Montoursville, 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

4 Doc. 37 at 14.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id. at 15.

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

his federal sentence in a Pennsylvania state correctional institution and 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 Lebanon County Court of Common Pleas 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

eligibly 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 then, 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 petition, in which he

raised the effectiveness 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, and the denial was affirmed by the

Superior Court.21 Petitioner then 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 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 petition as

19 Id. at 16.

20 Id.

21 Id.

22 Id.

23 Id.

24 Id.

untimely on April 3, 2019.26 Petitioner 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, 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 filed 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, Petitioner argued 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

The Court dismissed the second amended petition as untimely because, inter

alia, the Court found that:

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).

26 Id.

27 Id.

28 Id. at 18.

29 Id.

30 See Doc. 1

31 Doc. 17

32 See Doc. 37-1 at 134.

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 permit Petitioner to proceed under

§ 2244(d)(1)(D). As such, the second amended petition is untimely.34

The Court went on to consider whether equitable tolling may apply to the claims in

the second amended petition and provided Petitioner with an opportunity to present

any further argument regarding equitable tolling.35

Petitioner has since filed a supplemental brief in support of his petition

addressing equitable tolling.36 In it, he asserts that the Court misconstrued the factual

predicate upon which Petitioner relies to make his petition timely.37 Petitioner

argues that it is not his attorney’s affidavit, but the information that Petitioner learned

from that affidavit that creates newly discovered evidence.38 That factual predicate,

he contends, is that his counsel was ineffective for failing to ensure that the dismissal

of the escape charge was placed in the record and carried out, which is what he

expected as part of the plea agreement.39 Later in his supplement, Petitioner explains

34 Doc. 43 at 8-9.

35 Id. at 11.

36 Doc. 47.

37 Id. at 1-2.

38 Id. at 2.

that it is his counsel’s “admission” that he expected the plea bargain to include the

dismissal of the federal escape charge, and that dismissal had been discussed

between counsel, the Lycoming County District Attorney, and the United States

Attorney for the Middle District of Pennsylvania.40 Petitioner asserts that he was

not aware of these facts prior to his counsel’s December 13, 2018 affidavit.41

II. DISCUSSION

As the Court noted in its prior memorandum opinion, AEDPA’s one-year

limitations period for habeas petitions is subject to equitable tolling in appropriate

cases, on a case-by-case basis.42 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.”43

The diligence required for equitable tolling is reasonable diligence, not

maximum, extreme, or exceptional diligence.44 “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.”45 Reasonable

40 Id. at 3.

41 Id.

42 560 U.S. 631, 649–50 (2010). See Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013).

43 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).

44 Holland, 560 U.S. at 653.

45 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

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

the particular circumstances of the case.46

The 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.47 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.”48

Indeed, extraordinary circumstances have been found only where (a) the

respondent has actively misled the petitioner, (b) the petitioner has in some

extraordinary way been prevented from asserting his rights, (c) the petitioner has

timely asserted his rights mistakenly in the wrong forum, or (d) the court itself has

misled a party regarding the steps that the party needs to take to preserve a claim.49

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

46 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

circumstances.”).

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

Cir. 2003).

48 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”).

exist, “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.”50

Nothing in Petitioner’s supplemental brief regarding equitable tolling can alter

the conclusion that the second amended petition is untimely. Petitioner attempts to

differentiate his attorney’s affidavit from the facts alleged in it, suggesting that it is

not the affidavit that is the newly discovered evidence but, instead, the information

that his attorney expected the escape charge to be dismissed. This issue, however,

was known to Petitioner and litigated in his second PCRA petition, filed in 1994.

It may well be that Petitioner is focused on his attorney’s admission that he

was ineffective for failing to ascertain the dismissal of the escape charge; that,

however, is a legal conclusion, not the fact upon which the legal conclusion is based.

Furthermore, even assuming for the purpose of this issue that Petitioner’s counsel

was ineffective, Petitioner would have known of that ineffectiveness when the

escape charge was not dismissed, i.e. sometime before 1994 when he filed his second

PCRA petition regarding the failure to dismiss the escape charge.

Additionally, Petitioner has not demonstrated the sort of extraordinary

circumstances that would warrant equitable tolling. He alleges no external factor

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

that prevented him from raising this issue at an earlier, appropriate time, nor does he

allege any of the other few circumstances that have been deemed extraordinary.

Because Petitioner has failed to demonstrate either that he has been pursuing his

rights diligently or that any extraordinary circumstances existed, the Court will

dismiss the Petition with prejudice as untimely.

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.”51 “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.”52

“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

51 28 U.S.C. § 2253(c)(2).

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

that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.”53

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

in its procedural ruling. Consequently, no certificate of appealability shall issue in

this matter.

IV. CONCLUSION

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

should be dismissed with prejudice as untimely under 28 U.S.C. § 2244(d), and a

certificate of appealability should not issue.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge