TACKETT v. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL TACKETT

, Case No. 1:20-cv-332 Erie

Petiti

cons W. SCOTT HARDY

v. ) UNITED STATES DISTRICT JUDGE

)

RICHARD A. LANZILLO

BARRY SMITH

UNITED STATES MAGISTRATE JUDGE

R d

esponcent ORDER ON RESPONDENT’S MOTION

) TO DISMISS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I, Recommendation

It is respectfully recommended that Respondents’ Motion to Dismiss [ECF No. 11] be

granted.

Il. Report

A. Background

Petitioner Michael Tackett, an inmate incarcerated at the State Correctional Institution at

Houtzdale (SCI-Houtzdale), initiated this action on November 20, 2020, by filing a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). ECF No. 3. Petitioner is challenging the

judgment of sentence imposed upon him by the Court of Common Pleas of Crawford County in

CP-20-CR-571-2010, following his conviction at trial on two counts of rape, two counts of

involuntary deviate sexual intercourse, two counts of sexual assault, and one count of terroristic

1]

threats. /d. at 1; see also ECF Nos. 11-5 and 11-6. Construed liberally, Petitioner appears to

raise the following four grounds for relief:

1. Ineffective assistance of counsel (IAC) and prosecutorial misconduct based upon the

fact that “trial judges and prosecutors have a direct pecuniary interest” in prosecutions

and counsel’s failure to inform him that the trial court lacked “Tenth Amendment

Jurisdiction”

2. IAC based on trial counsel’s failure to argue that the trial court lacked jurisdiction

over Petitioner, “particularly where Respondents provide no Apprendi Jury

Sentencing, 6"" + 14"" Amendment Protections”

3. Petitioner’s sentence violated Apprendi

4. Petitioner’s due process and equal protection rights were violated because he was

deprived of grand jury proceedings and a trial by an impartial jury of his peers

ECF No. 3 at 1. Petitioner does not offer any supporting facts, legal argument, or specific details

concerning any of these claims. Jd.

On March 12, 2021, Respondents filed the instant motion to dismiss in lieu of an answer.

ECF No, 11. Respondents raise two defenses: that the petition is untimely, and that each of the

four grounds for relief raised in the amended petition has been procedurally defaulted. Id.

Petitioner filed a response to the motion to dismiss on July 2, 2021. ECF No. 17. This matter is

ripe for adjudication.!

B. Analysis

Respondents first contend that the amended petition.is untimely under AEDPA, which

generally requires a state prisoner to file a federal habeas petition within one year after his or her

conviction becomes final. 28 U.S.C. § 2244(d); Thompson v. Adm’r N.J. State Prison, 701 Fed.

Appx. 118, 121 Gd Cir. 2017). A state-court criminal judgment becomes “final” within the

' This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation

pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).

meaning of § 2244(d)(1) at the conclusion of direct review or at the expiration of time for

seeking such review. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); see also 28

UIS.C. § 2244(d)(1)(A). However, the filing of a post-conviction relief petition may statutorily

toll (i.e., suspend) the running of the one-year habeas limitations period. See 28 U.S.C. §

2244(d)(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 subsection.”). Thus, in analyzing whether a

petition for writ of habeas corpus has been timely filed under the one-year 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). Jd. Third, the court

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

applied on the facts presented. Jd.

Turning first to the “trigger date,” the Pennsylvania Superior Court affirmed Petitioner’s

conviction and sentence on June 11, 2012, and the Pennsylvania Supreme Court denied his

Petition for Allowance of Appeal on July 2, 2013. ECF Nos. 11-12, 11-13. The one-year

AEDPA clock began to run the next day. See Swartz vy. Meyers, 204 F.3d 417, 419 (3d Cir.

2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration

of time for seeking such review); 28 U.S.C. § 2244(d)(1)(A).

On July 28, 2014, Petitioner filed a petition pursuant to the Pennsylvania Post Conviction

Relief Act, 42 Pa. C. S. A. § 9545, et seq. (SPCRA petition”). As of that date, 339 days of the

AEDPA clock had expired. As noted above, Section 2244(d)(2) provides that the one-year

limitations period is tolled during the pendency of a “properly filed” state post-conviction

proceeding. Because Petitioner’s PCRA petition was “properly filed,” the statute of limitations

was tolled until March 23, 2016, when the Pennsylvania Supreme Court denied Petitioner’s

Petition for Allowance of Appeal. ECF No. 11-21. At that point, Petitioner had 26 days

remaining (365 days — 339 days = 26 days) in which to file a timely habeas petition, or until

approximately April 18, 2016. His petition, filed on November 20, 2020, missed that mark by

over four years.

Before dismissing the petition as untimely, the Court must consider whether AEDPA’s

statute of limitations should be equitably tolled. See 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)). To receive the benefit of equitable

tolling, Petitioner must demonstrate that he: (1) pursued his rights diligently, and (2)

extraordinary circumstances prevented him from filing a timely petition. Holland, 560 U.S. at

649. Petitioner bears a “strong burden to show specific facts” supporting equitable tolling. Yang

v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304,

1307 (11th Cir. 2008)).

Petitioner has made no attempt to meet this burden. He has not offered any explanation

for the delays that resulted in the untimeliness of his § 2254 petition or suggested that he “was

prevented from managing his affairs or understanding his appeal rights.” United States vy.

Johnson, 743 Fed. Appx 153, 159 (3d Cir. 2018) (cert. denied 139 S. Ct. 471 (2018)). Nor has

he described any steps he took to diligently pursue his federal claims or established that

extraordinary circumstances prevented him from filing. The lone argument raised in his reply

brief with respect to timeliness appears to be that AEDPA’s statutory time-bar is unconstitutional

because “§ 2244(d)(1)’s one-year statute of limitations — which is not prescribed by the

Suspension Clause nor adopted expressly by the latest amendments (2004?) of the specialized

Habeas Corpus Rules governing § 2254 habeas applications — is a key ‘new restriction’ and

‘additional condition’ . . . not tolerated by the historic role of habeas, the Suspension Clause, or

the Rule Writers, or the Supreme Court.” See, generally, ECF No. 17 at 3-11. This argument is

plainly frivolous. See, e.g., Henry v. Smith, 2017 WL 2963000, at *3 (E.D. Pa. Feb. 28, 2017)

(“Courts in this District that have considered challenges to the AEDPA’s one-year limitation

have held the limitation is constitutional because the imposition of a one-year limit does not

unduly burden the right to petition for habeas corpus”); Pittman v. Clinton, 2015 WL 6406793, at

*3 (MLD. Pa. Oct. 21, 2015) (“[S]ince its inception in 1996 federal courts across the country

including our own Third Circuit Court of Appeals have continuously applied the provisions of

the AEDPA”); Thompson v. Southers, 2012 WL 5269261, at *2 (E.D. Pa. Oct. 25, 2012) (noting

that every court of appeals presented with the question has “uniformly rejected” the argument

that AEDPA’s one-year limitation violates the Suspension Clause) (collecting cases).

In short, Petitioner has failed to present any specific facts supporting the application of

equitable tolling. As a result, federal review of each of the four grounds raised in Petitioner’s

§ 2254 petition is barred by AEDPA’s one-year statute of limitations. Moreover, because

Respondents’ timeliness defense is clearly dispositive, the Court need not consider whether

Petitioner’s claims are also procedurally defaulted.

I. Conclusion

For the reasons stated herein, it is respectfully recommended that Respondents’ motion to

dismiss [ECF No. 11] be GRANTED.

IV. Certificate of Appealability

AEDPA provides that “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 arises out of

process issued by a State court” unless “a circuit justice or judge issues a certificate of

appealability.” 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.” Jd. at §

2253(c)(2). “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). Because jurists of reason would not find it debatable that

Petitioner’s claims are untimely, the Court should not issue a certificate of appealability.

V. Notice

In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek

review by the district court by filing Objections to the Report and Recommendation within

fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the

objections shall have fourteen (14) days from the date of service of Objections to respond

thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of

appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank,

488 F.3d 187 (3d Cir. 2007).

RICHARD A, LANALLO

United States Magistrate Judge

Dated: October 12, 2021