CAMERON v. CAPOZZA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DARYL EUGENE CAMERON, )

)

Petitioner, ) Civil Action No. 2:19-cv-840

)

v. )

) Magistrate Judge Patricia L. Dodge

MARK CAPOZZA, et al., )

)

Respondents. )

MEMORANDUM

Pending before the Court1 is the Petition for a Writ of Habeas Corpus (ECF 4) filed by

Daryl Eugene Cameron (“Petitioner”) under 28 U.S.C. § 2254. Petitioner challenges the judgment

of sentence imposed on him by the Court of Common Pleas of Mercer County on January 27, 2014

at criminal docket number CP-43-CR-342-2013. For the reasons below, the Court will deny the

Petition with prejudice because each of Petitioner’s claims for habeas relief are time-barred and

will deny a certificate of appealability.

I. Relevant Background2

In May 2013, the Commonwealth charged Petitioner with one count each of Rape of an

Unconscious Person, Involuntary Deviate Sexual Intercourse of an Unconscious Person,

Aggravated Indecent Assault (Complainant Unconscious or Unaware Penetration is Happening),

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

have a United States Magistrate Judge conduct proceedings in this case, including entry of a final

judgment.

2 Respondents attached as exhibits to their Answer (ECF 15) the relevant state court filings and

decisions. The documents will be cited to as follows: “Resp’s Ex. __, ECF __ at ___.” Respondents

also submitted Petitioner’s original state court record, which includes the transcripts from his

September 13, 2013 plea colloquy, his January 27, 2014 sentencing hearing and the hearing held

on November 24, 2014 on his first petition for collateral relief under Pennsylvania’s Post

Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq.

and Sexual Assault. The charges stemmed from an incident that occurred on February 23, 2013

when Petitioner was a guest at the victim’s home. The victim’s daughter reported that she walked

into a room and saw Petitioner sexually assaulting the victim, who was unconscious at the time.

The trial court appointed Assistant Public Defender Ted Isoldi (“trial counsel”) to represent

Petitioner. On September 16, 2013, Petitioner entered a negotiated guilty plea to one count of

Aggravated Indecent Assault (Complainant Unconscious or Unaware Penetration is Happening),

in violation of 18 Pa. Cons. Stat. § 3125(a)(4).

On January 27, 2014, the trial court sentenced Petitioner to the negotiated term of four to

eight years of incarceration to run concurrent to any existing sentence. The next month Petitioner

moved to modify his sentence, which the trial court denied on February 20, 2014. Petitioner did

not file an appeal with the Superior Court of Pennsylvania. Thus, his judgment of sentence became

final under both state and federal law on March 24, 2014, when the 30-day period for him to file

an appeal expired.3 (Resp. Ex. RR, ECF 15-44 at p. 2); see also 42 Pa. Cons. Stat. § 9545(b)(3);

Pa.R.A.P. 903; 28 U.S.C. § 2244(d)(1)(A) and Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012).

On July 24, 2014, Petitioner filed a pro se PCRA petition and commenced what the Court

will refer to as the “First PCRA Proceeding.” (Resp’s Ex. N, ECF 15-15 at pp. 1-14). The trial

court, now the PCRA court, appointed Attorney Randall Hetrick to represent Petitioner. A

counseled amended PCRA petition was then filed asserting that trial counsel was ineffective

because he did not prepare for trial and that as a result Petitioner’s guilty plea was not knowingly,

voluntarily and intelligently entered into. (Resp’s Ex. P, ECF 15-16 at pp. 1-2.)

3 The thirtieth day after February 20, 2014 was Saturday, March 22, 2014. Thus, Petitioner had

until Monday, March 24, 2014 to file a direct appeal.

An evidentiary hearing was held at which Petitioner and trial counsel testified. At this

hearing, Petitioner faulted trial counsel for not interviewing and presenting at a trial testimony

from Stephanie Lewis, Tina Davis (his ex-girlfriend), Keith Cameron (his brother), John and Josh

Cameron (his nephews), Tabitha Fidel Dillon and Tammy McGary Kerins. (PCRA Hr’g Tr.,

11/24/14, at pp. 6-10.) According to Petitioner, these individuals could have testified about the

victim’s bad character, her past sexual relationship Petitioner and/or that the victim fell asleep

during the preliminary hearing. (Id.)

Trial counsel testified that he reviewed the discovery materials with Petitioner on three

separate occasions before Petitioner entered his guilty plea. (Id. at p. 22.) He also said that

contacted Stephanie Lewis and that “the gist I learned from [her] was that she regarded the victim

in this case…as a liar. Apparently, [the victim] had been lent money by Stephanie Lewis and never

[paid] her back[.]” (Id. at p. 21.) Trial counsel explained that Stephanie Lewis also said that she

once saw Petitioner and the victim “fooling around in a hot tub[.]” (Id. at p. 26.) As for Tabitha

Fidel Dillon, trial counsel testified that he tried to reach out to her but he could not locate her. (Id.

at pp. 24-25.) As for the other potential witnesses, trial counsel explained:

As far as the other witnesses that [Petitioner] is talking about, those are

people that were at the preliminary hearing who heard the testimony of [the victim].

They were not present, to my understanding, for any of the fooling around in the

hot tub and things of that nature. They were at the preliminary [hearing]. I know

what was said at the preliminary hearing because I was there and saw the demeanor

the of the alleged victim/witness. She was nodding off and falling asleep at the

preliminary hearing. She is a very heavily-medicated woman.

…. [The victim] was brought to the hospital after the incident and the nurse testified

that even during her rape kit evaluation… [she] was nodding off. She nods off. She

is very heavily medicated. That’s just the way she is.

… There was no reason to [present testimony at trial from Petitioner’s proposed

witnesses]. I know what was there. And these people couldn’t testify to anything

other than what was said at the preliminary hearing.

(Id. at p. 25.)

Following this hearing, the PCRA court issued a memorandum and order dated

November 24, 2014 setting forth its findings of fact4 and conclusions of law and denying the

amended PCRA petition. (Resp’s Ex. T, ECF 15-20 at pp. 1-4.) The PCRA court credited trial

counsel’s testimony and found as fact that he reviewed “the discovery packet on three separate

occasions with [Petitioner].” (Id. at p. 1.) The PCRA court also found as fact that trial counsel

spoke with Stephanie Lewis and concluded that neither she nor any of the individuals identified

by Petitioner as potential witnesses could provide useful testimony for the defense at a trial. The

PCRA court also noted that “[n]one of [Petitioner’s] proposed witnesses testified at the [PCRA]

hearing, nor have they submitted Affidavits regarding what their testimony would be.” (Id. at p. 2.)

The PCRA concluded that Petitioner “failed to meet his burden of proof, and with regard to the

alleged failure of counsel to investigate properly, there is not a shred of evidence to establish any

such conclusions.” (Id. at p. 3.) It also rejected Petitioner’s claim that his guilty plea was not

knowingly, voluntarily and intelligently entered into. (Id.)

Petitioner did not file an appeal of the PCRA court’s November 24, 2014 decision

dismissing the First PCRA Proceeding. On February 6, 2015, he moved to reinstate that

proceeding. (Resp’s Ex. U, ECF 15-21 at pp. 2-4.) He asserted that Attorney Hetrick provided him

with ineffective assistance and he wanted to reopen the First PCRA Proceeding so that he could

raise claims that he contended Attorney Hetrick should have raise in the counseled amended PCRA

petition. (Id. at p. 4.) The PCRA court denied this motion on February 10, 2015. (Resp’s Ex. V,

ECF 15-22 at p.1.)

4 Under 28 U.S.C. § 2254(e)(1) this Court is bound by the credibility determinations and findings

of fact that the PCRA court made unless Petitioner produced “clear and convincing evidence” that

the PCRA court was wrong. See also Vickers v. Sup’t Graterford SCI, 858 F.3d 841, 850 n.9 (3d

Cir. 2017). Petitioner has not met that burden here.

About eleven months later, on January 8, 2016, Petitioner commenced what this Court will

refer to as the “Second PCRA Proceeding.” (Resp’s Ex. W, ECF 15-23 at pp. 1-23.) Petitioner

alleged that Attorney Hetrick was ineffective for failing to timely appeal from the PCRA court’s

November 24, 2014 order denying him relief in the First PCRA Proceeding. (Id.)

The PCRA court issued an order dismissing this petition as untimely under the PCRA’s

one-year statute of limitations, which is codified at 42 Pa. Cons. Stat. § 9545(b) and which is

jurisdictional.5 (Resp’s Ex. X, ECF 15-24 at pp. 1-3; Resp’s Ex. Z, ECF 15-26 at p. 1.) Petitioner

did not appeal the PCRA court’s order.

In August 2017, Petitioner commenced what the Court will refer to as the “Third PCRA

Proceeding” in which he raised a sentencing-phase claim that is not relevant to this federal habeas

case. The PCRA court appointed Attorney J. Jarret Whalen and it later issued a notice that it

5 Section 9545 provides, in relevant part:

(1) Any petition under this subchapter, including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final, unless the

petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result of interference

by government officials with the presentation of the claim in

violation of the Constitution or laws of this Commonwealth or the

Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to the

petitioner and could not have been ascertained by the exercise of due

diligence; or

(iii) the right asserted is a constitutional right that was recognized by the

Supreme Court of the United States or the Supreme Court of

Pennsylvania after the time period provided in this section and has

been held by that court to apply retroactively.

42 Pa. Cons. Stat. § 9545(b)(1). At the time, any petition invoking one of the exceptions set forth

in subparagraphs (i), (ii) or (iii) had to be filed within sixty days of the date the claim could have

been presented. Id. § 9545(b)(2). By amendment that became effective December 24, 2018, that

time period is now one year.

intended to dismiss the Third PCRA Proceeding because Petitioner’s sentencing-phase claim had

no merit. (Resp’s Ex. DD, ECF 15-30 at p. 1; Resp’s Ex. FF at pp. 15-32.) Petitioner, through

counsel, filed an amended petition claiming that the Mercer County Clerk of Courts improperly

obstructed his right to appeal from the PCRA court’s February 12, 2016 order dismissing the

Second PCRA Proceeding. As relief, Petitioner requested the reinstatement of his appeal rights

nunc pro tunc. (Resp’s Ex. HH, ECF 15-34 at pp. 1-2.)

Following a conference on the matter, the PCRA court granted Petitioner’s request that his

right to appeal its order dismissing the Second PCRA Proceeding be reinstated nunc pro tunc. The

PCRA court denied Petitioner’s sentencing-phase claim. (Resp’s. Ex. JJ, ECF 15-36 at pp. 1-2.)

Thus, at this point Petitioner’s Second PCRA Proceeding was reopened and his Third PCRA

Proceeding had concluded.

Petitioner, through counsel, then filed his appeal of the PCRA court’s decision denying the

Second PCRA Proceeding. He asserted that the PCRA court erred when it dismissed that

proceeding without conducting an evidentiary hearing. (Resp’s Ex. MM, ECF 15-39 at pp. 1-3.)

The PCRA court issued its Appellate Rule 1925(a) opinion explaining that the Second PCRA

Proceeding was untimely because Petitioner commenced it outside the PCRA’s one-year statute

of limitations and he failed to show that any of the exceptions set forth at § 9545(b)(1) applied to

excuse his untimely filing. (Resp’s Ex. NN, ECF 15-40 at pp. 1-18.)

On June 6, 2019, the Superior Court issued its opinion affirming the PCRA court’s

decision. (Resp’s Ex. RR, ECF 15-44 at pp. 1-9.) The Superior Court agreed with the PCRA court

that the Second PCRA Proceeding was untimely because Petitioner commenced it “on

January 8, 2016—almost 2 years after his Judgment of Sentence became final” and that he failed

to “avail himself of one of the exceptions [set forth at § 9545(b)(1)(i)-(ii)]” within the required 60-

day time period. (Id. at p. 8; see also id. “[Petitioner] has not invoked or argued that any timelines

exception applies to his claim. Accordingly, we are without jurisdiction to review [his] issue.”)

Petitioner did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania.

Petitioner commenced this federal habeas case at the very earliest on July 8, 2019, which

is the date he claims he placed the Petition for a Writ of Habeas Corpus in the prison mailing

system. (ECF 4 at p. 12.) He raises these claims:

Claim 1: Trial Counsel was ineffective for: (a) failing to share with Petitioner the

evidence gathered during discovery; and (b) failing to interview and

proceed to a trial and present evidence from Stephanie Lewis, John and

Josh Cameron and Tina Davis. As result, Petitioner’s guilty plea was

coerced and not knowingly, voluntarily and intelligently entered into;

Claim 2: There would have been insufficient evidence to convict Petitioner if he

had proceeded to trial because there was no DNA or other physical

evidence linking him to the crime and the victim was not a reliable

witness;

Claim 3: The victim lied, and also “nodded out twice,” when she testified at the

preliminary hearing and, therefore, she would not have been competent

to testify at a trial; and,

Claim 4: The victim’s daughter and the investigating officer, Corporal James

Powell, submitted false testimony at the preliminary hearing.

Additionally, Corporal Powell, who allegedly interviewed Petitioner

when Petitioner was under the influence of drugs, altered the statement

that Petitioner gave to him.

(Petition, ECF 4 at pp. 5-4; Brief in Support, ECF 5 at pp. 1-5.)

When Petitioner commenced this federal habeas case, he was litigating these same or

similar claims in another pro se petition that he had filed in state court. The Court will refer to this

proceeding as the “Fourth PCRA Proceeding.” (Resp’s Ex. SS, ECF 15-45 at pp. 4-12.) The Court

stayed this federal habeas case until the conclusion of the Fourth PCRA Proceeding. (ECF 6.)

The PCRA court later dismissed Petitioner’s Fourth PCRA Proceeding because the claims

he raised in it were untimely under the PCRA’s one-year statute of limitations and no exception

applied, and also because all of Petitioner’s claims were either previously litigated or waived.

(Resp’s Ex. VV, ECF 15-48 at pp. 1-9; Resp’s Ex. WW, ECF 15-49 at p. 1.) Thereafter, Petitioner,

who did not file an appeal of the PCRA court’s decision to the Superior Court, moved to reopen

this federal habeas case, which this Court granted. (ECF 8, 11.)

Respondents then filed the Answer in which they assert that the Court should deny

Petitioner’s federal habeas claims because they are time-barred under the applicable one-year

statute of limitations, which is set forth in the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) and codified at 28 U.S.C. § 2244(d).6 Petitioner counters in his Reply that his

claims are timely filed because they are based on allegedly “newly discovery” evidence. (ECF 23.)

II. Discussion

A. Jurisdiction

The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to

prisoners in custody pursuant to a state-court judgment. It permits a federal court to grant a state

prisoner a writ of habeas corpus “on the ground that he or she is in custody in violation of the

Constitution…of the United States.” 28 U.S.C. § 2254(a). Errors of state law are not cognizable.

Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is Petitioner’s burden to prove that

he is entitled to the writ. See, e.g., Vickers, 858 F.3d at 848-49.

In 1996, Congress made significant amendments to the federal habeas statutes with the

enactment of AEDPA, which “modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions

are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing

6 Respondents also asserts that Petitioner procedurally defaulted his claims and that they have no

merit. The Court’s disposition on timeliness makes it unnecessary to reach these additional issues.

Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). AEDPA reflects the view that habeas corpus is

a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for

ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011)

(internal quotations and citation omitted).

AEDPA substantially revised the law governing federal habeas corpus. Among other

things, AEDPA set a one-year limitations period for filing a federal habeas petition. See Pace v.

DiGuglielmo, 544 U.S. 408, 410 (2005).

B. Petitioner’s Claims are Time-barred

AEDPA’s statute of limitations is codified at 28 U.S.C. § 2244(d) and it provides, in

relevant part:

(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 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;

- - -

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

AEDPA also 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).

The date on which AEDPA’s one-year limitations period commenced is determined on a

claim-by-claim basis. Fielder v. Varner, 379 F.3d 113, 118-22 (3d Cir. 2004). In most cases,

including this one, AEDPA’s statute of limitations for all claims is calculated under

§ 2244(d)(1)(A) and begins to run on the date the petitioner’s judgment of sentence because final.

Petitioner’s suggestion that he should be able to use § 2244(d)(1)(D)’s triggering date for the start

of AEDPA’s statute of limitations is rejected because he has not shown that any of his claims are

based on a factual predicate that could not have been discovered through the exercise of due

diligence. Indeed, a review of the state court proceedings shows that Petitioner raised Claim 1

during the First PCRA Proceeding, and that Claims 2, 3 and 4 are premised upon information

Petitioner knew or should have known before his entered his guilty plea.

Thus, in this case the start date for AEDPA’s statute of limitations for all of Petitioner’s

claims is the date his judgment of sentence became final in accordance with § 2244(d)(1)(A). As

explained above, that date is March 24, 2014. Petitioner filed his first (and only timely) PCRA

petition 122 days later, on July 24, 2014. Under § 2244(d)(2), this First PCRA Proceeding

statutorily tolled AEDPA’s limitations period beginning on July 24, 2014. The First PCRA

Proceeding remained pending through on or around December 24, 2014, which is the last date that

Petitioner could have appealed the PCRA court’s November 24, 2014 order denying him relief.

Swartz v. Meyers, 204 F.3d 417, 419-20 (3d Cir. 2000).

Importantly, AEDPA’s limitations period began to run again the next day, on December

25, 2014. Because 122 days had expired already from the limitations period, Petitioner had 243

more days—until on or around August 24, 2015—to file a timely federal habeas petition. He did

not file his Petition until July 8, 2019, thereby making the claims he raised in the Petition untimely

by around 1414 days, or more than three years and ten months.

AEDPA’s statute of limitations was not statutorily tolled under § 2244(d)(2) during the

pendency of the Second, Third or Fourth PCRA Proceedings. These proceedings were commenced

by Petitioner after AEDPA’s statute of limitations expired on August 24, 2015 and therefore could

not serve to statutorily toll the limitations period.7

The Supreme Court has held that AEDPA’s limitations period “is subject to equitable

tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled

to equitable tolling only if he shows both that: (1) he has been pursuing his rights diligently, and

(2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at 649.

Petitioner does not argue that he is entitled to equitable tolling, nor has he directed the Court to

anything in the record to support a determination that equitable tolling would be appropriate in this

case. Petitioner may not have understood the ramifications of waiting so long to file his federal

habeas petition after the First PCRA Proceeding concluded, but it is well established that a

petitioner’s “lack of legal knowledge or legal training does not alone justify equitable tolling.”

Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir. 2013) (citing Brown v. Shannon, 322 F.3d 768,

774 (3d Cir. 2003) (equitable tolling not justified where petitioner had one month left in limitations

period in which he could have filed “at least a basic pro se habeas petition” at the time that

petitioner’s attorney informed him that he would not file an appeal in state court on his behalf and

could no longer adequately represent him)); and Doe v. Menefee, 391 F.3d 147, 177 (2d Cir. 2004)

(“Given that we expect pro se petitioners to know when the limitations period expires . . . such

inadvertence on Doe’s part cannot constitute reasonable diligence.”)

7 Moreover, the state court determined that the Second and Fourth PCRA Proceedings were

untimely under state law. Thus, neither of them qualifies as a “properly filed application for State

post-conviction or other collateral review” under § 2244(d)(2). Pace, 544 U.S. at 417 (“Because

the state court rejected petitioner’s PCRA petition as untimely, it was not ‘properly filed,’ and he

is not entitled to statutory tolling under § 2244(d)(2).”); id. at 414 (“When a postconviction petition

is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”) (internal

quotation marks and bracketed text omitted).

Another exception to AEDPA’s statute of limitations is the “miscarriage of justice”

exception. In McQuiggin v. Perkins, 569 U.S. 383 (2013), the Supreme Court recognized that the

actual-innocence “gateway” to federal habeas review developed in Schlup v. Delo, 513 U.S. 298

(1995) for procedurally defaulted claims extends to cases in which a petitioner’s claims would

otherwise be barred by the expiration AEDPA’s one-year statute of limitations. This exception

provides that a petitioner’s failure to comply with AEDPA’s one-year limitations period may be

excused if the petitioner presents evidence of “actual innocence” that is “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[.]” Schlup, 513 U.S. at 316. Where, as is the case

here, the petitioner pleaded guilty, he also must establish his actual innocence not only of the count

to which he pleaded guilty, but also the other charges the government excused in the plea

bargaining process. Bousley v. United States, 523 U.S. 614, 623-24 (1998). The “miscarriage of

justice” exception only applies in extraordinary cases in which the petitioner shows that a

constitutional violation has probably resulted in the conviction of one who is actually innocent.

Schlup, 513 U.S. at 316. This is not one of the rare cases in which the miscarriage of justice rule

is implicated.

Based on the above, each of Petitioner’s federal habeas claims are time-barred. For this

reason, the Court will deny the Petition with prejudice.

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. It provides that “[a] certificate

of appealability may issue…only if the applicant has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 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). Applying that standard here,

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

untimely. Thus, a certificate of appealability is denied with respect to each claim.

IV. Conclusion

The Court will deny the Petition with prejudice because all claims asserted in it are time-

barred and deny a certificate of appealability with respect to each claim.

An appropriate Order follows.

/s/ Patricia L. Dodge

Date: June 15, 2022 PATRICIA L. DODGE

United States Magistrate Judge