The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
VICTOR HERNANDEZ, No. 4:21-CV-00896
Petitioner, (Chief Judge Brann)
v.
SUPERINTENDENT, SCI FAYETTE,
Respondent.
MEMORANDUM OPINION
JUNE 7, 2022
Petitioner Victor Hernandez is currently incarcerated at the State
Correctional Institution, Fayette (SCI Fayette), in LaBelle, Pennsylvania. He filed
the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
seeking to overturn his 2013 state-court conviction and sentence. Because
Hernandez has plainly failed to meet the time limitations for federal habeas review,
the Court must dismiss his petition.
I. BACKGROUND
In late 2013, Hernandez entered a guilty plea pursuant to a plea bargain with
the Commonwealth of Pennsylvania, pleading guilty to aggravated assault,
conspiracy, assault by a prisoner, and several other lesser offenses.1 Hernandez
was facing a maximum aggregate sentence of more than 54 years’ imprisonment
and a maximum cumulative fine of $85,300.2 Under the plea agreement, he was
sentenced to 7 and ½ years’ to 15 years’ incarceration, to run concurrently with the
sentences he was already serving for earlier, unrelated offenses.3 He was fined
$1,000 plus costs,4 which Hernandez claims totaled $2,026.50.5 Hernandez alleges
that this fine was imposed by the sentencing court without determining his ability
to pay it.6
In December 2013, counsel for Hernandez filed a motion for post-sentence
relief, seeking to vacate Hernandez’s guilty plea.7 Hernandez claimed that his
guilty plea was coerced through pressure and intimidation by other inmates at
Lebanon County Correctional Facility and thus was involuntary.8 The trial court
ordered briefing and held a hearing,9 and on April 1, 2014, it denied Hernandez’s
post-sentence motion.10
It does not appear that Hernandez filed a direct appeal to the Superior Court
of Pennsylvania.11 It also does not appear that Hernandez ever filed a petition for
state post-conviction relief under Pennsylvania’s Post Conviction Relief Act
2 Id. at 1.
3 Id. at 6; Doc. 21-9 at 1.
4 Doc. 21-9 at 1.
5 See Doc. 2 at 3.
6 Doc. 1 at 5.
7 Doc. 21-11 at 1-2.
8 Doc. 21-12 at 4.
9 See Doc. 21-14.
10 See Doc. 21-16.
11 See Doc. 2 at 2.
(PCRA).12
Hernandez filed the instant Section 2254 petition on April 4, 2021,13 over
seven years after his state court post-sentence motion was denied. The Court
issued a standard order pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000),
warning Hernandez of the statutory limitations on filing second or successive
habeas petitions and granting him the opportunity to withdraw his petition to file
an all-inclusive one or to stand on his petition as filed.14 Hernandez failed to return
the election form, thus opting by default to have the initial petition ruled on under
28 U.S.C. § 2254.15
Respondent contends that Hernandez’s claims are unexhausted, meritless,
and barred by the AEDPA’s statute of limitations. Respondent further argues that
Hernandez has not established any basis for tolling the limitations period.
Hernandez did not file a reply brief or “traverse,” and thus his petition is ripe for
disposition.
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a one-year statute of limitations for state prisoners seeking habeas
12 42 PA. CONS. STAT. § 9541 et seq. (Pennsylvania’s corollary to federal habeas corpus relief);
see Doc. 2 at 3.
13 See Doc. 1 at 14.
14 Doc. 14.
15 See id. at 3.
corpus relief in federal court.16 In most cases, and as relevant for Hernandez’s
petition, that one-year clock begins to run when the state conviction becomes
“final,” as indicated by “the conclusion of direct review or the expiration of the
time for seeking such review.”17 The AEDPA expressly provides for tolling of this
limitations period when “a properly filed application for State post-conviction or
other collateral relief” for the at-issue judgment is “pending.”18
Hernandez appears to maintain that he can avail himself of one of the other
starting times found in Section 2244(d)(1) for the AEDPA’s one-year limitations
period. He alleges that the right he is asserting “is a constitutional right that was
recognize[d] by the Supreme Court of the United States or Supreme Court of
Pennsylvania” after his conviction became final,19 apparently attempting to
implicate 28 U.S.C. § 2244(d)(1)(C).20 Hernandez seems to argue that the “new
right” is 42 PA. CONS. STAT. § 9726(c) as interpreted by the Supreme Court of
Pennsylvania in Commonwealth v. Ford, 217 A.3d 824 (Pa. 2019),21 and that he
16 See 28 U.S.C. § 2244(d)(1).
17 Id. § 2244(d)(1)(A).
18 Id. § 2244(d)(2).
19 Doc. 1 at 13.
20 Section 2244(d)(1)(C) states: “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 . . . 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.” 28
U.S.C. § 2244(d)(1)(C).
21 In Commonwealth v. Ford, the Supreme Court of Pennsylvania held that “a [criminal]
defendant’s mere agreement to pay a specific fine [as part of a negotiated plea agreement] does
not constitute evidence that he is or will be able to satisfy the financial obligation,” as is
required for sentencing by 42 PA. CONS. STAT. § 9726(c). Ford, 217 A.3d at 825.
just discovered this new rule while doing research in the prison law library on
April 4, 2021, the day he filed his Section 2254 petition.22
Hernandez’s argument is incorrect for at least three reasons. First, as the
federal statute plainly indicates, Section 2244(d)(1)(C) requires a newly recognized
constitutional right established by the Supreme Court of the United States, not the
Supreme Court of Pennsylvania.23 Second, even if the decision in Commonwealth
v. Ford qualified as a newly recognized right for the purposes of Section
2244(d)(1)(C), which it does not, that case was decided on September 26, 2019,
almost two years before Hernandez filed the instant Section 2254 petition. As the
statute clearly states, the one-year limitations period begins to run on “the date on
which the constitutional right asserted was initially recognized,” not when it was
discovered by the petitioner.24 Finally, Hernandez has not argued or established
that this purported new right was made retroactively applicable to cases on
collateral review. Consequently, Section 2244(d)(1)(C) does not apply to
Hernandez’s habeas petition, and the Court must analyze timeliness under Section
2244(d)(1)(A).
Hernandez’s post-sentence motion was denied on April 1, 2014. Under
Pennsylvania law, he had 30 days, or until May 1, 2014, to file a direct appeal.25
22 Doc. 1 at 13.
23 See 28 U.S.C. § 2244(d)(1)(C).
24 Id. (emphasis added).
25 See PA. R. APP. P. 903(a).
Because no appeal was filed, Hernandez’s sentence became final for AEDPA
purposes on May 1, 2014, the “expiration of the time for seeking such review.”26
Consequently, Hernandez had one year—or until May 1, 2015—to file a habeas
petition under 28 U.S.C. § 2254.27 Hernandez did not file his petition until April 4,
2021, nearly six years out of time. Unless there is some justification for tolling the
AEDPA’s limitations period, Hernandez’s petition under Section 2254 is patently
untimely.
Statutory tolling is of no help to Hernandez. As admitted by Hernandez, he
did not seek post-conviction relief in state court. Therefore, his Section 2254
petition is time-barred unless he can establish some basis for equitable tolling.28
The AEDPA’s statute of limitations is subject to equitable tolling.29
Application of this doctrine, however, occurs “only in the rare situation where [it]
is demanded by sound legal principles as well as the interests of justice,” and must
be determined on a case-by-case basis.30 To establish entitlement to equitable
tolling, the petitioner must show that (1) “he has been pursuing his rights
diligently,” and (2) “some extraordinary circumstance” prevented him from timely
filing his Section 2254 petition.31 The diligence required is “reasonable diligence,”
26 See 28 U.S.C. § 2244(d)(1)(A).
27 See id.
28 See Martin v. Adm’r N.J. State Prison, 23 F.4th 261, 272 (3d Cir. 2022).
29 Martin, 23 F.4th at 272 (citing Holland v. Florida, 560 U.S. 631, 645-49 (2010)).
30 Id. (alteration in original) (quoting LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005)) (citing
Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012)).
31 Holland, 560 U.S. at 649 (citation omitted).
not “maximum feasible diligence.”32 Finally, the equitable tolling standard is
conjunctive, requiring the petitioner to establish both elements before tolling is
permitted.33
Hernandez has not established either element. Notably, Hernandez has not
argued for equitable tolling or even replied to Respondent’s assertion that his
petition is time-barred. The gravamen of grounds one and two of Hernandez’s
habeas petition is that the fine that was part of his 2013 sentence violates 42 PA.
CONS. STAT. § 9726(c) for the reasons given in Commonwealth v. Ford. Grounds
three and four assert that Hernandez’s due process rights were violated when he
“was never given [an] affidavit of probable cause nor arraignment.”34 Hernandez
has not demonstrated that he diligently pursued either of these post-conviction
claims. Nor has he shown that extraordinary circumstances stood in his way.
Equitable tolling, therefore, simply does not apply.
In short, Hernandez’s federal habeas petition is barred by the AEDPA’s
statute of limitations. And there is no basis for tolling that limitations period. His
Section 2254 petition, therefore, must be dismissed.35
32 Id. at 653 (citations omitted); Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013).
33 Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012).
34 Doc. 1 at 8-9.
35 The Court must also note that Hernandez has completely failed to exhaust any of his habeas
claims in state court. This is an independent reason to deny his Section 2254 petition. See 28
U.S.C. § 2254(b)(1)(A).
III. CONCLUSION
For the foregoing reasons, the Court will dismiss Hernandez’s petition for a
writ of habeas corpus under 28 U.S.C. § 2254. The Court will likewise deny a
certificate of appealability, as Hernandez has failed to make a substantial showing
of the denial of a constitutional right,36 or that “jurists of reason would find it
debatable” whether this Court’s procedural ruling is correct.37 An appropriate
Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
36 See 28 U.S.C. § 2253(c)(2).
37 Slack v. McDaniel, 529 U.S. 473, 484 (2000).