# FENTON v. CLARK

> District Court, W.D. Pennsylvania · February 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10416341

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** February 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10416341

## How later opinions describe it (automated extraction)

- holding that A/eyne is not to be applied retroactively
- holding that claims based on errots of state law are not cognizable on habeas review

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EUGENE FENTON, )
)
Petitioner ) Case No. 1:20-cv-00069 (Erte)
)
vs. )
) RICHARD A. LANZILLO
SUPERINTENDENT MICHAEL ) UNITED STATES MAGISTRATE JUDGE
CLARK, )
) OPINION AND ORDER ON
Respondent ) RESPONDENT’S MOTION TO DISMISS
) PETITION FOR WRIT OF HABEAS
) CORPUS (ECF No. 10)

Before the Coutt is a petition for a writ of habeas corpus filed by state prisoner Eugene
Fenton (Fenton) pursuant to 28 U.S.C. § 2254. ECF No. 4. He ts challenging the judgment of
sentence imposed upon him on January 30, 2009, by the Court of Common Pleas of Crawford
County, Pennsylvania, at its criminal docket number CP-20-CR-001034-2007. Respondent filed a
Motion to Dismiss, arguing that Fenton’s petition is barred by the applicable statute of limitations.
ECF No. 10. For the reasons that follow, the Respondent’s motion will be granted and Fenton’s
petition willbe dismissed.’
1. Factual Background
The Court takes the following factual background from the Pennsylvania Superior Coutt’s
opinion addtessing Fenton’s appeal from the denial of his third petition for post-conviction telief:
On November 20, 2008, a jury convicted [Fenton] of third-degree
murder and aggravated assault in connection with the October 23,
2007 death of an eleven-month-old child. [Fenton] was watching the
baby alone while the child’s mother, [Fenton’s] girlfriend, was at
work, and [Fenton] caused serious injuries to the child. When the
baby's mother returned home the following morning, the child was
whimpering and moaning. She called an ambulance, and the baby was

1 The parties have consented to the jurisdiction of a United States Magistrate Judge. See ECF No. 13, ECF No, 16.

transported to the hospital, where he underwent surgery but died
from his injuties to his brain.
Com. v. Fenton, 2015 WL 6954382, at *1 (Pa. Super. Ct. Nov. 9, 2015).
Il. Procedural Background
In December of 2007, Fenton was charged by criminal information with violations of 18 Pa.
C.S.A. § 2501 (a) (cttminal homicide); 18 Pa. C.S.A. § 2702(a)(1) (aggravated assault); 18 Pa. C.S.A. §
2705 (reckless endangerment); and 18 Pa. C.S.A. § 4304 (endangering welfare of a child).* See ECF
No. 10-4. Fenton was found guilty of criminal homicide in the third degree and aggravated assault
on November 20, 2008. He was sentenced to a term of not less than twenty years on his murder
conviction. The state court merged his aggravated assault conviction with his murder conviction for
sentencing putposes. Fenton did not file a direct appeal to the Pennsylvania Superior Coutt.
On January 4, 2010, Fenton filed, with the assistance of counsel, a petition seeking post-
conviction relief in the Crawford County Court of Common Pleas pursuant to 42 Pa. C.S.A. § 9541
(PCRA). ‘The state court dismissed Fenton’s petition on June 7, 2010. No appeal from that
dismissal was filed. Fenton then filed a second PCRA petition on November 20, 2010. He alleged
that his attorney was ineffective for not filing an appeal of the June 7, 2010 order dismissing his first
request for post-conviction relief. Counsel was appointed and, on November 10, 2011, the state
court granted Fenton’s petition. As relief, Fenton was permitted to file an appeal, nunc pro func, from
the June 7, 2010 dismissal of his first post-conviction petition. Fenton filed his appeal to the
Superior Court on November 14, 2011. On July 13, 2012, the Pennsylvania Superior Court affirmed

2 The procedural history of this case is taken directly from the Crawford County Court of Common Pleas ctiminal
docket sheet fot Fenton’s underlying conviction in Commonwealth v. Fenton, No. CP-20-CR-01034-2007 (Crawford Canty.
Com. PL 20097), available at https://ujsportal.pacoutts.us/DocketSheets/CPReport.ashx?docketNumbet=CP-20-CR-
0001034-20078&dnh=wpxUsBkDOLGCDL%2bLbD1pE9e%3d%3d (last visited November 17, 2020). The Court will
utilize the citation “Cm. Pleas Ct. Docket” where necessary to refer directly to that docket. Citations to a specific page
contemplate the page number as listed on the state court docket.

the dismissal of Fenton’s original PCRA petition. Fenton did not file a petition seeking allowance of
appeal to the Pennsylvania Supreme Court.
Fenton then filed a third PCRA petition on November 8, 2013. That petition was dismissed
by the state court on May 14, 2014. Fenton appealed to the Superior Court, which affirmed the
dismissal on November 9, 2015. Fenton did not file a petition for allowance of appeal to the
Pennsylvania Supreme Coutt.
Fenton filed the instant petition for habeas corpus relief with this Court on February 18,
ECF No. 1. The Respondents filed a motion to dismiss the petition on July 28, 2020. ECF
No. 10. Fenton was given multiple opportunities to respond to the Respondents’ motion— first
until October 2, 2020, and then again until January 26, 2021. See ECF No. 15, ECF No. 20. He has
not done so. The Court will therefore consider his petition as well as the Respondents’ motion
without Fenton’s response.
Ill. — Petitioner’s Claims
Fenton’s petition taises three grounds for relief. First, he argues that his sentence was
erroneously imposed due to his lack of a prior criminal record. ECF No. 4, p. 6. Next, he raises a
layered ineffective assistance of counsel claim. Id. p.7. Finally, Fenton asserts “newly discovered
evidence/facts mandatory minimum sentence, RRRI eligible” as grounds for relief. Id, p. 8. The
Respondents argue that Fenton’s habeas petition is untimely and should be dismissed because it was
filed beyond one year after Petitioner’s conviction became final. See ECF No. 10, 18-23. As
discussed below, certain of Petitioner’s claims fail to state grounds for habeas relief and, as to all
claims, the petition is untimely.

3 Although the petition was received on March 30, 2020, and docketed on April 22, 2020, the federal court deems a pro se
petitioner’s habeas petition filed when he delivers it to prison authorities for mailing, which here was February 18, 2020.
See ECF No. 4, p. 14; Burns v. Morton, 134 F.3d 109, 113 3d Cir.1998) (citing Houston v. Lack, 487 U.S. 266, 108 S. Ct.
2379, 101 L.Ed.2d 245 (1988). See also Ford v. Wenerowicz, 2010 WL 2710702, at *2 (E.D. Pa. Apr. 16, 2010), report and
recommendation adopted, 2010 WL 2710719 (B.D. Pa. July 8, 2010).

IV. Analysis
A. The AEDPA Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-yeat
limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C.
§ 2244(d) and it provides:
(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
tun 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 or 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 right 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; ot
(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 duting 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 “properly 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.
The statute of limitations set out in § 2244(d)(1) must be applied on a claim-by-claim basis.
Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), cert denied, 543 U.S. 1067 (2005). The Court will,
therefore, separate Fenton’s claims for analysis of their timeliness. Before reviewing his claims for
their timeliness, however, the Court must first determine whether Fenton’s grounds for relief are
cognizable for purposes of habeas review. A claim must be “cognizable” for purposes of federal
habeas review, which constticts a federal court’s teview to the determination whether a conviction
violated federal law. King v. Mabally, 2019 WL 3558028, at *10-11 (E.D. Pa. June 11, 2019), report and
recommendation adopted, 2019 WL 3548922 (E.D. Pa. Aug. 2, 2019). “[I]t 1s not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L-Ed.2d 385 (1991). Here, Fenton’s first claim does
not implicate federal law.
B. First Ground for Relief: Sentencing Error
Fenton states his first ground for relief as follows: “Sentencing was wrong (sentence
modification).” ECF No. 4, p. 6. In support, he states that “I was sentenced to 20 to 40 years. I
had a priot record score of 0 before this case. I believe my sentence should have been 7.5 to 15
yeats, possibly a 10 to 20 years.” Id. Because Fenton contends the Pennsylvania state coutt violated
ot misapplied state law in failing to give him credit for his lack of a criminal record, he has asserted a
state law claim that is not cognizable on federal habeas review. See, ¢.g., Brown v. Fields, 2020 WL
6742882, *3 (D. Del. Nov. 17, 2020) (citing Estelle, 502 U.S. 62, 67-68 (1991) (holding that claims
based on errots of state law are not cognizable on habeas review).

To state a cognizable federal habeas claim based on an alleged state sentencing error, a
petitioner must show that the alleged error was “so arbitrary or capricious as to constitute an
independent due process violation.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Simply stated, Fenton
has failed to demonstrate that the failure to credit his lack of a criminal record on his Pennsylvania
sentence denied him due process of law. Here, Fenton does not allege that the sentence imposed
exceeded statutory limits, that the state court’s sentence was arbitrary, or that any particular
constitutional tight was violated, nor did he raise such arguments on direct appeal; indeed he did not
file a direct appeal. See, ¢.g, Foss v. Superintendent of SCI Fayette, 2020 WL 2141800, at *10 (E.D. Pa.
Feb. 28, 2020), report and recommendation adopted, 2020 WL 2126886 (E.D. Pa. May 5, 2020). Thus,
consttued as a claim of sentencing ertor, it is not cognizable in a habeas proceeding and will be
dismissed.
C. Second Ground for Relief: Ineffective Assistance of Counsel.
As a second ground for relief, Fenton asserts what he identifies as a “layered” ineffective
assistance of counsel claim. ECF No, 4, p. 7. The Petition states:
Trial attorney Bruce Barrett did not want my case. [He] filed several
motions asking to be removed from my case. Second attorney
(appeals) only filed a PCRA waived all my direct appeals and post
appeal rights. ‘Third attorney Edward Hatheway amended my pro se
PCRA and only appealed court’s decision on first PCRA.
Id. The basis for this claim is scant. Fenton states only that his “attorney filed a PCRA, waived all
my direct appeal rights.”* ECF No. 18, p. 7. This claim will be dismissed to the extent Fenton
assetts that his post-conviction counsel was ineffective, because such claims ate not cognizable in
habeas proceedings. Put simply, there is no federal constitutional right to counsel in
collateral proceedings, and freestanding claims of ineffective assistance of post-conviction counsel

‘The state court docket indicates that John B. Elbert, Esq., filed the first post-conviction petition on Fenton’s behalf on
January 10, 2010.

ate not cognizable on federal habeas review. See 28 U.S.C. § 22544) (“The ineffectiveness or
incompetence of counsel during Federal ot State collateral post-conviction proceedings shall not be
a pround for relief in a proceeding arising under section 2254.”).
Fenton does not reference Attorney Barrett’s ineffectiveness, only his unwillingness to
provide tepresentation at trial, thus failing to state an ineffectiveness claim. And even had Fenton
sufficiently raised ineffectiveness against Barrett, that claim would be untimely.
An ineffectiveness claim against Attorney Barrett would not implicate newly enunciated
constitutional rights and is not based on facts that were discovered later. Furthermore, there were
no state-created impediments that prevented Fenton from raising this claim sooner. See, eg., Wegemer
v. Gilmore, 2019 WL 6465366, at *4 (W.D. Pa. Dec. 2, 2019). Consequently, the “trigger date” for
this claim is the date on which Fenton’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
ot the expiration of time for seeking such review, including the time limit (90 days) for filing a writ
of certiorari in the Supreme Court).
Because Fenton did not file a direct appeal, his conviction became final on March 2, 2009,
which marks the day after the expiration of the thirty-day appeal period in Pennsylvania. Pa. R.
Crim. P. 720(a) (3); see ¢.g., Calhoun v. Pennsylvania, 2020 WL 868199, at *1 (B.D. Pa. Feb. 20, 2020).
The one-year ADEPA clock began to run on that date, allowing Fenton until March 2, 2010, to file a
timely federal habeas petition. Fenton’s habeas petition was filed on February 18, 2020, the date he
signed it and gave it to prison officials for mailing. See, ¢.g., Scales v. Atty. Gen. of Penna., 2018 WL
3823779, *1 (W.D. Pa. Aug. 10, 2018). Thus, his petition was filed almost ten years too late.
Because Fenton sought federal habeas relief well outside the one-year limitations period, his

petition is statutorily time-barred. He offers no argument to the contraty.” Given this deficiency, the
Court must determine whether he can take advantage of the statutory tolling provision set out in
Section 2244(d)(2) before dismissing this claim as untimely.
1. Statutory Tolling
Although Fenton is entitled to some statutory tolling, his claim is still untimely. Section
2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a “properly
filed” state post-conviction proceeding. Fenton filed his first PCRA petition on January 4, 2010, by
which time 308 days of his one-year limitations period had expired (Match 2, 2009 through
January 4, 2010). Those proceedings were “properly filed” and remained pending until August 13,
2012. This was the day after the time expired for Fenton to file a petition for allowance of appeal
with the Supreme Court of Pennsylvania. See generally ECF No. 10-11 (Commonwealth v. Fenton, 1841
WDA 2011 (Pa. Super. Ct. July 12, 2012).° At that point in time, Fenton had 57 days (365 days —
308 days = 57 days) remaining to file a timely habeas petition, or until October 12, 2012. As
pteviously noted, he did not file his habeas petition until February 18, 2020, nearly a decade after the
statute of limitations expired. ‘Thus, despite the application of some statutory tolling, his petition 1s
untimely.
To the extent Fenton attempts to argue that he is entitled to statutory tolling for the time his

5 It is appropriate where, like here, the habeas petitioner has been put on notice of a statute of limitations defense, to
place some burden on him or her to show why the petition is timely. See, ¢.g., Sprankke v. Gilmore, 2020 WL 5760354, at
*4 (WD. Pa. Sept. 28, 2020) (citing Smith ». Duncan, 297 F.3d 809, 814 (9th Cir. 2002) (“once 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 tesponse”), abrogation on other grounds recognized in,
Moreno v. Harrison, 245 Fed. Appx. 606 (9th Cir. 2007). See also Jackson v. Secretary for Dept. of Corrections, 292 F.3d 1347,
1349 (11th Cir. 2002); Robinson v. Jobnson, 313 F.3d 128, 134 3d Cir. 2002)(“The putpose of requiring the defendant to
plead available affirmative defenses in his answet is to avoid surprise and undue prejudice by providing the plaintiff with
notice and the opportunity to demonstrate why the affirmative defense should not succeed.”).
6 The Superior Court recounted the procedural history of Fenton’s post-conviction litigation. ECF No. 10-11, p. 4.
Fenton’s original petition was dismissed on June 7, 2010, and no appeal of that decision was taken. Id. Acting pro se,
Fenton filed a second PCRA petition, atguing that counsel was ineffective for not appealing the dismissal of his first
petition. Id. The PCRA court agreed and granted Fenton relief in the form of permitting him to appeal the dismissal of
his first petition pro tunc. Id. Fenton filed an appeal on November 14, 2011. Id.

third PCRA petition was pending, he 1s mistaken. Not only was that petition filed years beyond the
date his habeas petition was due, Fenton’s third PCRA petition was dismissed by the state court as
untimely and thus it was not “properly filed” within the meaning of section 2244(d)(2). See ECF No.
10-113; see also Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003); Artuz v. Bennett, 121 S. Ct. 361,
364 (2000) (An application for state post-conviction relief or collateral review is “properly filed” as
required to toll AEDPA’s statute of limitations period for filing a federal habeas petition “‘when its
delivery and acceptance ate in compliance with the applicable laws and rules governing filings|,]’
notwithstanding the substance or metits of the claims contained within the application itself.”). See
also Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (a federal court is bound by a state court’s finding
that a petitioner’s PCRA petition was untimely, even where the petitioner sought to pursue his
PCRA petition under a statutory exception to the PCRA’s time bat).
2. Equitable Tolling
Next, the Court must consider whether AEDPA’s statute of limitations should be equitably
tolled. 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 Gd Cir. 1998) (citation omitted)). That
the state court granted Fenton’s second petition for post-conviction relief might, at first, implicate
equitable tolling.
The Supreme Court has held that the habeas time bar is not jutisdictional, but instead
subject to equitable tolling. Nevertheless, AEDPA’s one-year limitations period may be equitably
tolled only in exttaordinary situations. Holland v. Florida, 560 U.S. 631, 649-50 (2010). See also Severs
v, Atty. Gen. of New Jersey, 2019 WL 5704591, at *2 3d Cir. Nov. 9, 2019) (citing Holland). ‘Vhe
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 3d Cir. 1999). To receive the benefit of equitable tolling, however,

Fenton must show that he (1) pursued his rights diligently, and (2) that extraordinary circumstances
ptevented him from filing a timely petition. Id at 649. The Court of Appeals for the Third Circuit
has advised that:
[t]here are no bright lines in determining whether equitable tolling 1s
wattanted in a given case.” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d
Cir. 2011). Nevertheless, “courts must be sparing in their use of
equitable tolling,” Sectzinger v. Reading Hosp. & Medical Cir., 165 F.3d
236, 239 (3d Cir. 1999), and should do so “only when the principles
of equity would make the right application of a limitation period
unfair.” Miller [v. New Jersey State Dept. of Corr.], 145 F.3d [616, 618
(3d Cir. 1998)].
Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012). In reopening Fenton’s PCRA case, the state
court judge concluded that “the uncontradicted evidence is that the defendant asked his mother to
advise his attorney that he wished to appeal this Court’s determination that he was not entitled to
PCRA relief and his mother then advised his attorney of that request. Counsel did not file the
appeal and the defendant is entitled to now appeal from this Court’s Order of June 7, 2010, nunc pro
ECF No. 10-10, p. 5. Thus, Fenton appears to have been diligent in pursing his appeal rights,
and his belief that his lawyer was filing an appeal was an extraordinary circumstance that likely
ptevented Fenton from doing so himself. See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80,
89 Bd Cir. 2013) (“One potentially extraordinary circumstance [for equitable tolling purposes] is
whete a ptisoner is ‘effectively abandoned’ by his attorney.” (quoting Holland v. Florida, 560 U.S. 631,
651 (2010))). But even giving Fenton every benefit of the doubt and applying equitable tolling until
August 13, 2012, the limitations period still expired on October 12, 2012, and his petition is late by
approximately eight years.
D. Third Ground for Relief: Newly Discovered Evidence
In his last ground for relief, Fenton states that his petition should be granted based on
“newly discovered evidence/facts mandatory minimum sentence, RRRI Eligible.” ECF No. 4, p. 8.
In support, he asserts only “3 murder and agg. assault both carry man. Minimum. Also RRRI
10

eligible, no history of violence.” Id. Fenton does not identify or provide any specifics as to the
of this newly identified evidence. Instead, he states only that “my attorney’s (sic) did not
appeal. Also just learned about RRRI and man. sentence’s (sic).” Jd Given this paucity of
information, it is difficult to identify Fenton’s ground for relief and analyze its tmeliness.
To the extent he 1s raising a claim of newly discovered evidence, the habeas statute provides
for alternative dates for the commencement of the habeas limitations period. 28 U.S.C.
§ 2244(d)(1)(D) (‘date on which the factual predicate of the claim ... could have been discovered
through the exercise of due diligence”). See, ¢.g., Thompson v. Ransom, 2019 WL 8641159, at *2 (B.D.
Pa. Oct. 10, 2019), report and recommendation adopted, 2020 WL 2098109 (E.D. Pa. May 1, 2020). But
Fenton does not present new evidence or state what the new evidence would be. His suggestion in
his petition that his attorney “did not appeal” likely is in reference to his first post-conviction
petition and thus, could arguably implicate subsection (D). This argument fails, however, because to
satisfy subsection (D) a petition must identify a factual predicate for his claim that he could not
reasonably have discovered at the time of his trial. Thompson, 2019 WL 8641159, at *2. Because
Fenton presents no new evidence of any kind, his claim is not eligible for the benefit of a later start
date.
Fenton also mentions “mandatory minimums” in this last ground for relief. He does not
point to any specific starting point for this claim under AEDPA, but to the extent this clatm could
be construed as arguing that his mandatory minimum sentence violated A/eyne v. United States, 570
USS. 99 (2013), itis untimely. Fenton’s judgment of sentence because final years before A/eyne was
decided. ‘Therefore, the rule announced in that case does not apply to his claim. See United States v.
Reyes, 755 F.3d 210, 213 (3d Cir. 2014) (holding that A/eyne is not to be applied retroactively).
As set forth above, Fenton’s judgment of sentence became final on March 2, 2009. That is
the date that is relevant in conducting the retroactivity analysis required for the disposition of this

1]

claim. See, ¢.g., Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (citing Griffith v. Kentucky, 479 U.S. 314, 321
n.6 (1987) (“[a] state conviction and sentence become final for putposes of retroactivity analysis
when the availability of direct appeal to the state courts has been exhausted and the time for filing a
petition for writ of certiorari has elapsed or a timely filed petition has been finally denied.”)).
Under Teague v. Lane, 489 U.S. 288 (1989), a state prisoner seeking habeas relief in federal
court may not rely on a “new” constitutional rule of criminal procedure that was announced after
the date of his judgment of sentence became final. As discussed above, Fenton’s judgment of
sentence became final on March 2, 2009. That was well before the Supreme Court decided A/eyne in
2013. Therefore, the new tule announced in A/eyne does not apply retroactively to cases on
collateral review, such as this one. Reyes, 755 F.3d at 212-13. The Supreme Court of Pennsylvania
has held the same. Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Because A/eyne does
not apply retroactively to cases on collateral review, it cannot afford Fenton any relief, and this claim
must be dismissed.
Finally, and without much explanation, Fenton states that he was “RRRI eligible.” ECF No.
4, p. 8. Here, Fenton seems to argue that the state court’s sentence erroneously concluded that he
was not eligible for the Recidivism Risk Reduction Initiative (RRRD program. As was noted above,
claims attacking a petitionet’s sentence—including claims relating to RRRI eligibility—are not
cognizable habeas claims. See Petrov v. Walsh, 2012 WL 2308622, at *13 (M.D. Pa. May 4, 2012),
report and recommendation adopted, 2012 WL. 2283732 (M.D. Pa. June 18, 2012) (holding that claims that
a petition should have been found eligible for Pennsylvania’s RRRI program are without metit)
(citing Levis v. Wilson, 748 F. Supp.2d 409, 416 (E.D. Pa. 2010) (‘claims based upon state law are not
cognizable” in a § 2254 habeas petition) (citations omitted).

12

V. Conclusion
For the foregoing reasons, the Respondent’s Motion to Dismiss the instant Petition will be
granted and the petition will be dismissed because it is time-barred. Fenton did not file the § 2254
petition within the one-year AEDPA statute of limitations and no tolling or other exceptions apply
to his petition. In addition, several of Fenton’s claims fail to state a basis for habeas relief.
VI. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for
appellate review of a district court’s disposition of a habeas petition. It provides that “{ulnless 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(c)(1)(A). It also provides that “[a]
cettificate 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 reaching the prisonet’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
jurists of reason would find it debatable whether the district court was cortect in its procedural
ruling.” Svack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard hete, jutists of reason
would not find 1t debatable whether Fenton’s petition should be dismissed because it is time-barred,
lacks merit, or is procedurally defaulted. Accordingly, the Court will not issue a certificate of
appealability on any of Fenton’s grounds fot relief.
ORDER
AND NOY, this 12” day of February, 2021, for the reasons set forth in the Memorandum
filed contemporaneously herewith, IT IS HEREBY ORDERED that Respondents’ Motion to

13

Dismiss Petitioner Eugene Fenton’s petition for federal habeas corpus relief (EFC No. 10) is
GRANTED, Petitionet’s petition is DISMISSED with prejudice, and a Certificate of Appealability is
DENIED as to all claims raised in the petition. The Clerk of Court is directed to mark this case
CLOSED as of this date.
So otdered.
ta A. Cop xt 3
United States Magistrate Judge

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416341. Public record. Not legal advice.