BLACK v. OVERMYER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

THOMAS J. BLACK, )

)

Petitioner ) Case No. 1:18-cv-00322 (Erte)

)

vs. )

) RICHARD A. LANZILLO

M. D. OVERMYER, ) UNITED STATES MAGISTRATE JUDGE

ATTORNEY GENERAL OF THE )

STATE OF PENNSYLVANIA )

DISTRICT ATTORNEY OF )

ERIE COUNTY, PA, ) MEMORANDUM OPINION AND

) ORDER ON PETITION FOR WRIT OF

) HABEAS CORPUS (ECF No. 4)

Respondents )

Before the Court 1s a petition for a writ of habeas corpus filed by state prisoner Thomas J.

Black (Black) pursuant to 28 U.S.C. § 2254. ECF No. 4. He is challenging the judgment of sentence

imposed upon him on November 20, 2012, by the Court of Common Pleas of Erie County,

Pennsylvania, at its criminal docket number CP-25-CR-001125-2012. Respondents argue that

Black’s petition 1s barred by the applicable statute of limitations. For the reasons that follow, the

Petition will be dismissed as untimely.’

I. Relevant Factual and Procedural Background*

A. State Court Proceedings

1 The parties have consented to the jutisdiction of a United States Magistrate Judge. See ECF No. 15; ECF No. 17.

? The facts and procedural history wete obtained from Black’s habeas petition and the Court of Common Pleas criminal

docket sheets for Petitioner’s underlying conviction in Commonwealth v. Black, No. CP-25-CR-0001125 (Erie Cnty. Com.

PL), available at https://ujsportal.pacourts.us /DocketSheets /CPReport.ashx?docketNumber=CP-25-CR-0001125-

2012&dnh=mNS9b80LdDo] QjWh%2fswEpQ%3d% (last visited April 24, 2019) [hereinafter “Crim. Docket”].

Detailed explication of the facts of his crime may also be found in the Opinion of the Superior Court of Pennsylvania

filed September 20, 2018, which is attached to Black’s Petition. See ECF No. 4-2; see also Commonwealth v. Black, 2018 WL

4499712 (Pa. Super. Ct. Sept. 20, 2018).

At the conclusion of trial in the Court of Common Pleas of Erie County, Pennsylvania, on

September 18, 2012, a jury found Black guilty of attempted murder, aggravated assault, and related

charges. ECF No. 4, 0. 1; Commonwealth v. Black, 2015 WL 7451202, *1 (Pa. Super. Ct. Mar. 9, 2015).

On November 26, 2012, Black was sentenced to an aggtegate term of 25 to 50 yeats’ incarceration.

Id. On December 6, 2012, Black filed a timely motion for reconsideration of his sentence, which

was denied the next day, December 7, 2012. See Commonwealth v. Black, 2015 WL 7451202, *1 (Pa.

Super. Ct. Mar. 9, 2015). He did not file a direct appeal with the Pennsylvania Superior Court. Id.

On January 6, 2014, Black filed a petition pursuant to the Pennsylvania Post Conviction

Relief Act, 42 Pa. C.S. A. § 9545, et seq. See ECF No. 4, p. 3; ECF No. 11-1, pp. 1-8. On

March 26, 2014, the Court of Common Pleas for Erie County filed its Notice of Intent to Dismiss

pursuant to Pa. R. Crim. P. 907. ECF No. 11-1, pp. 14-16. Black did not file a response to the

court’s Rule 907 notice and, on April 23, 2014, the PCRA court issued an order dismissing his

petition. ECF No. 11-1, p. 17. The next day, April 24, 2014, Black appealed, pro se, to the

Pennsylvania Superior Court. ECF No. 11-1, p. 18. The Superior Court vacated the PCRA Coutt’s

denial of relief. The Court concluded that Black’s PCRA counsel had failed to propertly withdraw

from the case. See Commonwealth v. Black, 2015 WL 7451202, *2 (Pa. Super. Ct. Mar. 9, 2015). The

case was remanded to the PCRA court and ew counsel was appointed on May 8, 2015. Id.

Coutt-appointed counsel from the Erie County Public Defender’s Office filed a

supplemental PCRA petition on Black’s bebalf on June 22, 2015. The PCRA court dismissed the

PCRA petition without providing notice under Rule 907 on June 24, 2015.° Black filed a notice of

appeal to the Superior Court on July 16, 2015. That Court affirmed the dismissal of the PCRA

3 The Supetior Court noted this error. See Commonwealth v. Feighery, 661 A.2d 437 (Pa. Super. Ct. 1995). However,

because Black did not object to this procedural error in his brief, the Superior Coutt determined that he had waived any

challenge to this procedural error. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citation omitted).

petition on July 19, 2016. See Commonwealth v. Black, 2016 WL 2016 WL 5349318 (Pa. Supet. Ct.

July 19, 2016). The Pennsylvania Supreme Court denied Black permission to appeal on January 4,

2017. See Commonwealth v. Black, 164 A.3d 492 (Pa. 2017).*

On December 8, 2017, Black filed a second PCRA petition pro se. ECF No. 11-2, p. 53.

The PCRA Court filed its Notice of Intent to Dismiss on March 26, 2018. Id. at p. 60. Prematutely,

Black filed a Notice of Appeal with the Superior Court on April 16, 2018. The final order

dismissing the Black’s second PCRA was entered on April 30, 2018, and the PCRA court filed a

memorandum on June 11, 2018. The Superior Court affirmed the dismissal of Black’s second

PCRA petition on September 20, 2018. See Commonwealth v. Black, 2018 WL 4499712 (Pa. Super. Ct.

Sep. 20, 2018). Black did not seek permission from the Pennsylvania Supreme Court to appeal.

B. Federal Court Proceedings.

Black filed the instant petition for a writ of habeas corpus with this Court on November 29,

2018. ECF No. 4. On December 26, 2018, this Court entered an order directing the Office of the

District Attorney of Erie County to entet an appearance and to file an answer to Black’s petition.

ECF No. 5. The District Attorney’s office filed a Response to Black’s petition on March 26, 2019.

ECF No. 10; ECF No. 11. A copy of the state court record was filed on April 24, 2019. On

April 29, 2019, Black filed a Reply to the Respondents’ Response in Opposition. ECF No. 16. The

Petition is ready for disposition.

Petitionet’s Claims

Black’s Petition raises one ground fot relief:

Trial counsel was ineffective for not pursing discovery based upon

the need of a witness’s testimony under Rule 602 [Need for Personal

Knowledge], Subsection [F], and Rule 573[A][1] and [D]; to obtain a

lesser offense charged for sentencing purposes.

4 The Respondents incorrectly list this date as January 30, 2017. See ECF No. 10, p. 3. That is the date the decision was

recorded on the Court of Common Pleas docket, not the date of the Pennsylvania Supreme Court’s ruling.

ECF No. 4-1, p. 1.

The AEDPA Statute of Limitations Bars Black’s Petition.

The Respondents argue that Black’s petition is untimely and should be dismissed. See ECF

No. 10, pp. 48.

A. AEDPA Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (““AEDPA”) imposes a one-yeat

limitations period fot state prisoners seeking federal habeas review. It is codified at 28 U.S.C.

§ 2244(d) and provides:

(1) A 1-yeat petiod of limitation shall apply to an application

for a wtit 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;

(B) the date on which the impediment to filing an

application created by State action in violation of

the Constitution ot 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 tight asserted

was initially recognized by the Supreme Coutt, if

that right has been newly recognized by the

Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the facts supporting the claim or

claims presented could have been discovered

through the exercise of due diligence.

(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 section.

28 U.S.C. § 2244(d).

In analyzing whether a petition for writ of habeas corpus has been timely filed under the

one-yeat limitations period, a federal court must undertake a three-part inquiry. First, the court must

determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1). See

Caldwell v. Mahally, et al., 5741706, *5 (W.D. Pa. Nov. 5, 2019). Second, the court must determine

whether any “propertly filed” applications for post-conviction or collateral relief were pending during

the limitations period that would toll the statute pursuant to section 2244(d)(2). Id. Third, the court

must determine whether any of the other statutory exceptions or equitable tolling should be applied

on the facts presented. Id.

B. Ineffective Assistance of Counsel Claim

1. Trigger Date Calculation

Black’s lone claim concerns matters that occurred at the time of trial (ineffective assistance

of trial counsel). This claim does not implicate newly enunciated constitutional rights or facts that

were discovered later. Furthermore, there wete no state-created impediments that prevented Black

from raising this claim sooner. Consequently, the “trigger date” for his claim is the date on which

Black’s judgment of sentence became final. See Swartz v. Meyers, 204 F.3d 417, 419 Gd Cir. 2000)

(noting that a judgment becomes final at the conclusion of direct review or the expiration of time

for seeking such review); Wiliams v. Pennsylvania, 2011 WL 780673, *1 n.1 (B.D. Pa. Mar. 4, 2011).

The trial court denied Black’s motion for modification of sentence on December 6, 2012. He did

not file a direct appeal.

Thus, Black’s judgment of sentence became final on January 7, 2013—one month after the

trial court denied his motion fot modification—and the one-year limitations period for filing a

habeas corpus petition began to run on that date. See 28 U.S.C. § 2244(d)(1)(A); Pa. R. Crim. P.

720(A)(2)(a). This puts January 7, 2014, as the date by which Black had to file any federal habeas

petition. Black’s habeas petition was filed on November 29, 2018. See, ¢g., Scales v. Atty. Gen. of

5 Pennsylvania and federal courts employ the prisoner mailbox rule. See Perry v. Diguglielmo, 169 F. App’x 134, 136 n.3 3d

Cit. 2006) (citing Commonwealth v. Littl, 716 A.2d 1287 (Pa. Super. Ct. 1998); Burns ». Morton, 134 F.3d 109, 113 (3d Cir.

1998). Under this doctrine, a prisoner’s pto se petition is deemed filed when delivered to prison officials for mailing. See

Penna., 2018 WL 3823779, *1 (W.D. Pa. Aug. 10, 2018) (discussing application of mailbox rule to

inmate’s habeas filing date). His petition was filed more than two and one-half yeats too late.

Because Black sought federal habeas relief well outside the one-year limitations period, his petition is

statutorily time-barred. Given this deficiency, the Court must determine whether he can take

advantage of the statutory tolling provision set out in Section 2244(d)(2).

2. Statutory Tolling — First PCRA Petition

Although Black is entitled to some statutory tolling, his habeas petition 1s still untimely.

Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a

“propetly filed” state post-conviction proceeding. Black filed his first PCRA petition on January 6,

2014, by which time 333 days of his one-year limitations petiod had expired (February 7, 2013

through January 6, 2014). Those proceedings were “properly filed,” and, thus, tolled the statute of

limitations until they were concluded on Januaty 4, 2017, when the Pennsylvania Supreme Court

denied Petitioner’s Petition for Allowance of Appeal. The statute of limitations started to run again

the following day (January 5, 2017), and, at that point in time, Black only had 32 days (365 days - 333

days = 32 days) remaining to file a timely habeas petition, or until Friday, February 6, 2017. As

pteviously noted, he did not file his habeas petition until almost two years after the statute of

limitations expired. Thus, even accounting for statutory tolling, his petition is patently untimely.

Burns, 134 F.3d at 113; Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa. Super. Ct. 2001) (deemed filed when given to

ptoper ptison authority or placed in a prison mailbox). Here, Black did not certify the date on which the petition was

placed in the prison mailing system. ECF No. 4, at p. 15. Howevet, the petition was received on November 29, 2012,

and will therefore be treated as having been filed on that date. Rule 2(c) of the Rules Governing 2254 Cases trequites the

petition must be “signed under penalty of perjury ot by a person authorized to sign it for the petitioner under 28 U.S.C.

§ 2242.” Rules Governing § 2254 Cases, Rule 2(c)(5); see also 28 U.S.C. § 2242 (“Application for a writ of habeas corpus

shall be in writing signed and verified by the person fot whose relief it is intended or by someone acting in [her]

behalf”). Petitioner filed his habeas petition without a signatute. ECF No. 4 at p. 15. Because the petition remains

unsigned and unverified as requited by Section 2242 and the Rules Govetning 2254 Habeas Cases, it also may be

ptoperly dismissed as in any other case of failure to prosecute. See, ¢¢., Cox v. McBride, 279 F.3d 493 (7 Cir. 2002).

3. Equitable Tolling — First PCRA Petition

Next, the Court must consider whether AEDPA’s statute of limitations should be equitably

tolled, thereby rendering Black’s petition timely filed. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir.

2002), cert. denied, 540 U.S. 826 (2003) (citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-

618 (3d Cir. 1998) (citation omitted)). ‘The Supreme Court has held that the habeas time bar is not

jurisdictional, but instead subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649-50 (2010).

But AEDPA’s one-year limitations period may be equitably tolled only in extraordinary situations.

Id. at 649-50. See also Severs v. Atty. Gen. of New Jersey, 2019 WL 5704591, at *2 3d Cir. Nov. 9, 2019)

(citing Holland). 'The limitation period will be equitably tolled when the principles of equity would

make the rigid application of a limitation period unfair. Satterfield v. Johnson, 434 F.3d 185, 195 3d

Cir. 2006); Jones v. Morton, 195 F.3d 153, 159 Gd Cir. 1999). To receive the benefit of equitable

tolling, however, Black must show that he (1) pursued his rights diligently, and (2) that extraordinary

citcumstances ptevented him from filing a timely petition. Id. at 649.

Black has shown neither and is, therefote, not entitled to equitable tolling. First, he has

failed to show that he pursued his rights diligently. See Lawrence v. Florida, 549 U.S. 327, 335 (2007).

The diligence required of a prisoner in pursuing the timely filing of his habeas petition is “reasonable

diligence” not maximum diligence. Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013) (citing Holland,

560 U.S. at 653). The teasonable diligence test is subjective, taken in light of the petitioner’s

circumstances. Id. at 800 (citations omitted). Black bears a “strong burden to show specific facts”

supporting equitable tolling. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown ».

Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)). “[L]ack of legal knowledge or legal training does not

alone justify equitable tolling.” Jd. (citing Brown v. Shannon, 322 F.3d 768, 774 3d Cir. 2003)).

Here, Black fails to provide an explanation for the delay of ovet three hundred days from the

final judgment and sentence in his case, his failure to file a ditect appeal, and the very lengthy delay

in filing his habeas petition. He does not contend that he “was prevented from managing his affairs

or understanding his appeal tights.” United States v. Johnson, 743 Fed. Appx 153, 159 Gd Cir. 2018)

(cert. denied 139 S. Ct. 471 (2018)). He offers no specificity as to any alleged lack of access to coutts

and fails to expound on any steps he took to diligently pursue his federal claims.

Neither has Black established that extraordinary circumstances prevented him from filing.

Therefore, equitable tolling cannot excuse the untimeliness of his petition and allow this Court to

consider the merits of these two claims. See, ¢.g., McGowan v. Ransom, et al., 2019 WL 5580993, at *6

(E.D. Pa. Oct. 4, 2019).

4, Equitable Tolling — Second PCRA Petition

To the extent Black argues that he is entitled to statutory tolling for the time his second

PCRA petition was pending in the state courts, he is incorrect. Black did file a second PCRA

petition on December 8, 2017. See ECF 11-2, pp. 1-7. But because that second petition was filed

after the time for filing his habeas petition (February 7, 2017) had expired, the pendency of his

second PCRA proceedings cannot be used to statutorily toll Black’s time for filing his habeas

petition. See McWhorter v. McGinley, 2019 WL 3848873, *4 (E.D. Pa. July 26, 2019) (citing Mors v.

Mazurkiewez, 2011 WL 2708498, *3 (E.D. Pa. June 8, 2011) (holding that where the AEDPA statute

of limitations had already ran, a subsequent PCRA Petition does not “toll an already expired statute

of limitations.”).°

6 Black may be seeking to have the statute of limitations commence pursuant to § 2244(d)(1)(D) because of new

evidence purporting to show that “it was the victim’s fault for pulling a gun on Petitioner, who grabbed it in self-defense

just before it discharged.” ECF No. 4-1, p. 1. He points to an affidavit of a witness, Demarsje Henderson, who stated

that Black shot the victim in self-defense. ECF No. 4-2, p. 5. Assuming without deciding that Henderson’s affidavit is

“new evidence” under the statute, Black’s petition is still untimely. The affidavit is dated November 3, 2017. Since

Black provides no date for when he obtained this evidence, the Court assumes he received it on that day. Therefore, his

habeas petition would have needed to be filed within a yeat—on or before November 3, 2018. Black did not file his

petition until November 29, 2018. Thus, it remains untimely,

IV. Conclusion

For the foregoing reasons, the instant petition is dismissed because it is time-barred. Black

did not file the § 2254 petition within the one-yeat AEDPA statute of limitations and no tolling or

other exception applies to his petition. The petition will be dismissed, with prejudice.

V. Certificate of Appealability

AEDPA codified standards governing the issuance of a certificate of appealability for

appellate review of a district coutt’s disposition of a habeas petition. It provides that “[ujnless a

circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of

appeals from ... the final order in a habeas corpus proceeding in which the detention complained of

atises out of process issued by a State court[.]” 28 U.S.C. § 2253(¢)(1)(A). It also provides that “[a]

certificate of appealability may issue ... only if the applicant has made a substantial showing of the

denial of a constitutional right.” Id. § 2253(c)(2). “When the district court denies a habeas petition

on procedural grounds without teaching 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

of reason would find it debatable whether the district court was correct in its procedural

ruling.” Slack ». McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, jurists of teason

would not find it debatable whether Black’s claim should be dismissed because it is time-barred,

lacks metit, or is procedutally defaulted. Accordingly, the Court will not issue a certificate of

appealability on Black’s sole ground for relief.

An appropriate Order follows.

ORDER

AND NOW, this 4° day of May, 2020, for the reasons set forth in the Memorandum filed

contemporaneously herewith, IT IS HEREBY ORDERED that Petitioner Thomas J. Black’s claim

for federal habeas corpus relief is DISMISSED with prejudice and a certificate of appealability is

DENIED as to the claim. The Clerk of Coutt is directed to mark this case CLOSED as of this date.

po Ly

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8 , i wy 5 fe 2

RICHARD A. aE we

United States Magistrate Judge

10