COSBY v. RANSOM

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FIDEL LAMAR COSBY, ) Civil Action No. 3: 20-cv-0205

)

Petitioner, ) Chief United States Magistrate Judge

) Cynthia Reed Eddy

v. )

)

SUPERINTENDENT KEVIN J. RANSOM, )

and DISTRICT ATTORNEY OF )

CAMBRIA COUNTY, )

)

Respondents. )

MEMORANDUM OPINION1

On October 2, 2020,2 Petitioner Fidel Lamar Cosby (“Petitioner” or “Cosby”) filed the

instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his

judgment of sentence entered in the Court of Common Pleas of Cambria County, Pennsylvania,

on November 3, 2015. (ECF No. 1). Respondents filed a Motion to Dismiss on the grounds that

the petition is barred by the statute of limitations. (ECF No. 11). Cosby filed a timely response

in opposition. (ECF No. 20). The mater is ripe for disposition.

For the reasons set forth below, the petition for writ of habeas corpus will be dismissed as

untimely and a certificate of appealability will be denied.

1. In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily

consented to have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a

final judgment. jurisdiction by a United States Magistrate Judge. See ECF Nos. 18 and 19.

2 The “prisoner mailbox rule” provides that a prisoner’s pleadings are deemed filed at the

moment he delivers the documents to prison officials to be mailed, and not the date the

documents were actually filed in court. Houston v. Lack, 487 U.S. 266, 275–76 (1988); see also

Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (explaining that “a pro se prisoner's . . .

petition is deemed filed at the moment he delivers it to prison officials for mailing”).

I. Procedural History

The following state court procedural and factual background is extracted from the June

26, 2018, decision of the Superior Court of Pennsylvania dismissing Cosby’s appeal for want of

jurisdiction:

The facts and procedural history of this case are undisputed. Briefly, on

September 22, 2015, Appellant pleaded guilty to third-degree murder 19 Pa.C.S.A

§ 2502(c)) and firearms not to be carried without a license (18 Pa.C.S.A. §

6101(a)(1)). On November 3, 2015, the trial court sentenced Appellant to an

aggregate term of 156 to 420 months’ imprisonment. Appellant filed post-

sentence motions, which the trial court denied on December 22, 2015. On April 6,

2017, nearly fifteen months after his judgment of sentence became final,

Appellant pro se filed a petition under the Post-Conviction Relief Act (“PCRA”),

alleging ineffective assistance of counsel and requesting reinstatement of his

direct appeal rights nunc pro tunc. On May 12, 2017, the PCRA court, without a

hearing and based on the parties’ consent, dismissed Appellant’s PCRA petition

without prejudice and reinstated nunc pro tunc his direct appeal rights. The PCRA

court directed Appellant to file a notice of appeal within thirty days of the date of

the order. Appellant complied. Following Appellant’s filing of a Pa.R.C.P.

1925(b) statement of errors complained of on appeal, the trial court issued a

Pa.R.C.P. 1925(a) opinion.

. . .

Before we may address the merits of this appeal, we must determine whether

the PCRA court had jurisdiction to entertain the underlying PCRA petition. . . . .

Section 9545's timeliness provisions are jurisdictional. Commonwealth v. Ali, 86

A.3d 173, 177 (Pa. 2014). Additionally, we have emphasized repeatedly that “the

PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions

to the PCRA time-bar in addition to those exceptions expressively delineated in

the Act.” Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)

(citations omitted).

Here, the record reflects Appellant’s judgment of sentence became final on

January 22, 2016. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because

Appellant had one year from January 22, 2016, to file his PCRA petition, the

current filing is facially untimely given it was filed on April 6, 2017.

The one-year time limitation, however, can be overcome if a petitioner alleges

and proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of

the PCRA. Here, Appellant has failed to allege, let alone prove, any exceptions to

the one-year time bar. Accordingly, the PCRA court did not have jurisdiction to

entertain Appellant’s PCRA petition on the merits and reinstate his direct appeal

rights nunc pro tunc. We likewise lack jurisdiction to consider the merits, if any,

of the petition. Thus, the instant appeal must be dismissed for want of jurisdiction.

. . .

Commonwealth v. Fidel Cosby, 918 WDA 2017 (Pa. Super. Ct. June 26, 2018) (unpublished

memorandum opinion) (ECF No. 11-1 at 87-90). On May 31, 2019, the Supreme Court of

Pennsylvania granted Cosby leave to file a Petition for Allowance of Review nunc pro tunc.

Commonwealth v. Fidel Cosby, No. 12 WM 2019 (Pa. May 31, 2019)(ECF No. 11-1 at 92). The

Supreme Court of Pennsylvania denied Cosby’s Petition for Allowance of Appeal on October 16,

2019. Commonwealth v. Fidel Cosby, No. 167 WAL 2019 (Pa. Oct. 16, 2019)(ECF No. 11-1 at

93).

On October 5, 2020, Cosby filed a second PCRA petition. After providing Cosby with

notice of the court’s intent to dismiss the second PCRA petition and an opportunity to respond,

on October 28, 2020, The Honorable Norman A. Krumenacker, III, President Judge of the Court

of Common Pleas of Cambria County, entered an Opinion and Order denying Cosby’s second

PCRA petition as untimely. (ECF No. 11-1 at 107-112). It does not appear from a review of the

public docket that Cosby filed an appeal from that order.3

Almost contemporaneously with the filing of his second PCRA petition, Cosby filed the

instant federal habeas petition on October 2, 2020. (ECF No. 1). Respondents were served and

filed the pending motion to dismiss on December 28, 2020. (ECF No. 11). Cosby has responded

in opposition (ECF No. 20) and the matter is ripe for disposition.

3 See https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-11-CR-0002008-

2014&dnh=yg8VdsBJlnAwdzWWFqVWKA%3D%3D (last viewed 3/31/2021).

II. Discussion

A. Timeliness

AEDPA imposes a one-year limitations period for a state prisoner to file a federal habeas

petition. Generally, the limitations period begins to run on the date the judgment of sentence

becomes final. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final at the conclusion of direct

review or upon the expiration of time for seeking such review. Id.; see Gonzales v. Thaler, 565

U.S. 134 (2012). One of the following alternative start dates, however, may apply:

(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 Court, if the 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 factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(B)-(D). Furthermore, the AEDPA limitations period is subject to both

statutory and equitable tolling. Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999).

Cosby pleaded guilty to third-degree murder and firearms not to be carried without a

license on September 22, 2015. The state court sentenced him on November 3, 2015. Post-

sentence motions were denied on December 22, 2015. Cosby did not file a direct appeal. The

judgment became final on January 22, 2016, after the expiration of the thirty days allotted to

pursue a direct appeal. 28 U.S.C. § 2244(d)(1)(A). The one-year AEDPA statute of limitations

period commenced running as of that date and expired one year later, on January 23, 2017.4

Therefore, the present petition, filed October 2, 2020, is facially untimely and must be dismissed

4 Because January 22, 2017, was a Sunday, the filing day was extended until the next business

day, which was Monday, January 23, 2017.

unless Cosby can show that the limitations period should be tolled, either statutorily or equitably,

or that an alternate date should apply.

B. Statutory Tolling

Section 2244(d)(2) provides that “[t]he 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.” 28 U.S.C. §

2244(d)(2) (emphasis added). A properly filed post-conviction petition tolls AEDPA’s statute of

limitations. Id. As noted above, Cosby’s judgment of sentence became final on January 22,

2016. Cosby’s first PCRA petition was not filed until April 6, 2017, nearly fifteen months after

his judgment of sentence became final. The Superior Court found that Cosby had failed to prove

any exceptions to the one-year time bar and dismissed the appeal for want of jurisdiction.

Cosby’s second PCRA petition was also dismissed as being untimely.

“A state postconviction petition rejected by the state court as untimely is not ‘properly

filed’ within the meaning of § 2244(d)(2).” Allen v. Siebert, 552 U.S. 3, 5, (2007) (citing Pace v.

DiGuglielmo, 544 U.S. 408 (2005)). Because the Superior Court rejected Cosby’s PCRA petition

as untimely, he is not entitled to statutory tolling under § 2244(d)(2) for the time he spent

litigating his first PCRA petition.5 The one-year AEDPA deadline for filing a federal habeas

petition expired on January 23, 2017. Yet, Cosby filed his federal petition for writ of habeas

corpus on October 2, 2020, approximately 3 years, 8 months, and 9 days (or 1348 days) after the

AEDPA filing deadline.

5 This Court “must defer” to the holdings of the state courts on whether a PCRA petition is

untimely. See Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003).

C. Equitable Tolling

Equitable tolling stops the clock when extraordinary circumstances prevent a petitioner

from timely filing, thereby rendering strict enforcement of the one-year limitations period unfair.

Wood v. Milyard, 566 U.S. 463, 469 n.3 (2012); see also Holland v. Florida, 560 U.S. 631

(2010). “Equitable tolling of the limitations period is to be used sparingly and only in

“extraordinary” and “rare” circumstances. See Satterfield v. Johnson, 434 F.3d 15, 195 (3d Cir.

2006); LaCava v. Kyler, 398 F.3d 271 274-75 (3d Cir. 2005). Generally, a litigant seeking

equitable tolling must establish two elements: (1) that he has been pursuing his rights diligently;

and (2) that some extraordinary circumstance stood in his way. Pace, 544 at 418.

With respect to the diligent pursuit of rights, the petitioner must demonstrate that he

exercised reasonable diligence in investigating and bringing the claims. See Robinson v.

Johnson, 313 F.3d 128, 142 (3d Cir. 2002). Mere excusable neglect is not sufficient. See

LaCava, 398 F.3d at 276.

Extraordinary circumstances have been found 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, Jones, 195 F.3d at 159, or (4) the court has misled a party regarding the steps that the

party needs to take to preserve a claim, see Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).

Significantly, even where extraordinary circumstances exist, “[i]f 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.” Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224

F.3d 129, 134 (2d Cir. 2000)).

Here, Cosby does not request equitable tolling of the AEDPA statute of limitations on the

grounds that he exercised reasonable diligence throughout the limitations period or that

extraordinary circumstances obstructed his pursuit of relief in either state or federal court.

Rather, he requests equitable tolling under the “actual innocence” standard first developed in

Schulp v. Delo, 513 U.S. 298 (1995), and later expanded in McQuiggin v. Perkins, -- U.S. --, 133

S.Ct. 1924 (2013).

McQuiggin made it clear that such an exception is very rare, noting that the petitioner

“must show that it is more likely than not that no reasonable juror would have convicted him in

the light of the new evidence.” Id. at 1935 (citing Schlup, 513 U.S. at 327). “To be credible a

claim of actual innocence must be based on reliable evidence not presented at trial.” Schlup, 513

U.S. at 324; Calderon v. Thompson, 523 U.S. 558, 559 (1998). “Proving actual innocence based

on new evidence requires the petitioner to demonstrate (1) new evidence (2) that is reliable and

(3) so probative of innocence that no reasonable juror would have convicted the petitioner.”

Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012) (citing Schlup, 513 U.S. at 327). Moreover,

our court of appeals has instructed that,

The gateway actual innocence standard is “demanding” and satisfied only

in the “rare” and “extraordinary case” where “a petition presents evidence of

innocence so strong that a court cannot have confidence in the outcome of the trial

unless the court is also satisfied that the trial was free of nonharmless

constitutional error.

Reeves v. Fayette SCI, 897 F.3d 154, 161 (3d Cir. 2018) (quoting McQuiggin, 569 U.S. at 392),

cert. denied, -- U.S. --, 139 S.Ct. 2713 (June 17, 2019).

Cosby cannot satisfy this extremely narrow exception. He is unable to demonstrate that

no reasonable juror would have convicted him. Cosby had no trial because he pled guilty.

Courts within the Third Circuit have rejected actual innocence claims asserted to overcome a

time-bar when, as here, the petitioner pled guilty to the offenses of conviction. See, e.g., Evick v.

Caple, Civ. Act. No. 18-395-RGA, 2021 WL 534877, at *6-8 (D. Del. Feb. 2, 2021); Hamilton

v. Estock, Civil No. 3: 20-cv-1476, 2020 WL7391270, at *4 (M.D.Pa. Dec. 16, 2020); Madison

v. McGinley, Civ. Act. No. 18-3539, 2019 WL 2591296, at *4 (E.D.Pa. May 3, 2019) (collecting

cases).

“It is well-settled that ‘[s]olemn declarations in open court carry a strong presumption of

verity’ that creates a ‘formidable barrier in any subsequent collateral proceedings’.” Evick, 2021

WL 534877 at *7 (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). The transcript of

Cosby’s plea colloquy contains his clear and explicit statement that he understood the charges

against him; he had discussed his case with his defense counsel and understood all of the rights

he was waiving by entering a guilty plea; nobody had forced him to plead guilty or had promised

him anything other than what was in the plea agreement in exchange for his plea; and he was

pleading guilty because he was, in fact, guilty. (ECF No. 11-1 at 11-22). The Court finds that

Cosby’s claim of actual innocence is belied by his admission of guilt while under oath at the

guilty plea hearing. See Madison v. McGinley, 2019 WL 2591296, at *4 (collecting cases).

After careful consideration of the submissions of the parties, the Court finds that Cosby

has failed to show that the AEDPA statute of limitations should be equitably tolled. Because

Cosby cannot demonstrate that he is entitled to statutory or equitable tolling, even considering

his argument of actual innocence, his petition remains untimely. He has failed to demonstrate

that he is entitled to any exceptions to the federal statute of limitations.

III. 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. 28 U.S.C. § 2253 provides

that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right.” “When the district court denies a habeas petition

on procedural grounds without reaching 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 jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here,

jurists of reason would not find it debatable whether Cosby’s claims should be denied as

untimely. Accordingly, a certificate of appealability will be denied.

IV. Conclusion

For the reasons set forth above, the petition for writ of habeas corpus is time-barred and

no tolling applies to remedy the untimeliness. A certificate of appealability will be denied. A

separate Order follows.

DATED: April 1, 2021

BY THE COURT:

s/ Cynthia Reed Eddy

Cynthia Reed Eddy

Chief United States Magistrate Judge

cc: FIDEL LAMAR COSBY

MJ-5123

SCI-DALLAS

1000 FOLLIES ROAD

DALLAS, PA 18612

(via U.S. First Class Mail)

Warren L. Crilly , III

Cambria County District Attorney's Office

(via ECF electronic notification)