# HILL v. HARRY

> District Court, W.D. Pennsylvania · March 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10419513

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 5, 2024
- **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/10419513

## How later opinions describe it (automated extraction)

- affirming second-degree murder conviction where victim died of bronchopneumonia developed while she was being treated for burns caused by the defendant
- recognizing an actual innocence exception to the AEDPA’s statute of limitations

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DWIGHT M. HILL, )
Petitioner, Civil Action No. 20-cv-1841
Vv. Magistrate Judge Maureen P. Kelly
SUPERINTENDENT LAUREL HARRY; Re: ECF No. 1
THE ATTORNEY GENERAL OF THE )
STATE OF PENNSYLVANIA; and )
DISTRICT ATTORNEY OF ALLEGHENY )
COUNTY )
Respondents.
MEMORANDUM OPINION
Dwight M. Hill (“Petitioner”) is a state prisoner currently incarcerated at the State
Correctional Institution in Camp Hill, Pennsylvania (“SCI-Camp Hill”). On November 27, 2020,
Petitioner submitted a “Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody” (the “Petition”). ECF No. 1. In the Petition, Petitioner seeks federal habeas relief
from his 2008 conviction of Third Degree Murder in the Court of Common Pleas of Allegheny
County, Pennsylvania, at Case No. CP-02-CR-12419-2004. Id. at 1. For the reasons that follow,
the Petition will be denied.’
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
On February 5, 2008, Petitioner pleaded guilty to the following offenses at two separate
but related criminal cases. At Docket No. CP-02-CR-13731-2004 — which is not the criminal case
from which he seeks relief — Petitioner pleaded guilty to:

e Rape, in violation of 18 Pa. C.S.A. § 3121(a)(1);

' Full consent of the parties to the jurisdiction of a United States Magistrate Judge was obtained
on October 1, 221. ECF Nos. 13 and 18.

e. Involuntary Deviate Sexual Intercourse, in violation of 18 Pa. C.S.A. § 3123(a)(1);
e Indecent Assault, in violation of 18 Pa. C.S.A. §§ 3126(a)(1); and
e Simple Assault, in violation of 18 Pa. C.S.A § 2701 (a)
Docket, Com. v. Hill, No. CP-02-CR-13731-2004 (C.C.P. Allegheny Cnty.)
(available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-
001373 1-2004&dnh=rleNL V □□□□□□□□□□□□□□□□□□□□□□□ (last visited Mar. 5, 2024)).
At Docket No. CP-02-CR-12419-2004 — which is the criminal case from which Petitioner
seeks federal habeas relief — Petitioner pleaded guilty to Third Degree Murder, in violation of
18 Pa. C.S.A. § 2502(c). Docket, Com. v. Hill, No. CP-02-CR-12419-2004 (C.C.P. Allegheny
Cnty.) (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-
CR-0012419-2004&dnh=s%2B8zXtroSGP8XMEO0bAS91Q%3D%3D (last visited Mar. 5,
2024).
Pursuant to a negotiated plea agreement, the prosecution withdrew several additional
charges against Plaintiff at Docket No. CP-02-CR-13731-2004 at the plea hearing. ECF No. 15-
1 at 1-2; see also Plea/Sentencing Hr’g Tr. dated Feb. 5, 2008, at 5-6. Further, pursuant to that
agreement, Petitioner was sentenced on the same date to an aggregate term of imprisonment of
30-60 years on all counts in both criminal cases, with credit for time served during pretrial
detention. ECF No. 15-1 at 42-44.
In its Opinion denying Petitioner’s PCRA appeal, the Pennsylvania Superior Court set forth
the following, very brief summary of the facts underlying Petitioner’s conviction.
On February 5, 2008, Appellant pled guilty to, inter alia, rape and
third-degree murder in connection with his sexual assault of a
seventy-nine-year-old patient at a personal care home. The woman
died of pneumonia acquired as a result of aspiration in the hospital
where she was admitted as a consequence of Appellant's assault.
Also on February 5, 2008, Appellant was sentenced in accordance

with his plea agreement to an aggregate term of thirty to sixty years
of imprisonment. Appellant filed no direct appeal.
Com. v. Hill, No. 390 WDA 2019, 2019 WL 6972643, at *1 (Pa. Super. Ct. Dec. 19, 2019).
The PCRA trial court provided additional facts in its Opinion.
This matter arises out the guilty plea of Petitioner, Dwight Hill, on
February 5, 2008 to third degree murder as a result of the death a 79
year old dementia patient. The Commonwealth's summary of the
evidence at the plea hearing established that the patient was a
resident in a personal care home in Elizabeth, Pa. where she had
been since March 2001. (T., p. 9) The patient was completely
dependent for her care and could only communicate on the most
basic level. (T., p. 10) Hill was neither a resident nor an employee
of the home but had been allowed to stay at the home with the
consent of the owners. (T., p. 11). On August 14, 2004, an aide had
prepared the victim for breakfast by bathing her, changing her diaper
and then wheeling her in her wheel chair from her bedroom to a
common area for breakfast. The aide then left the room to prepare
another resident for breakfast. When she returned, the victim was
gone from the common room and an urgent search found her in
another bedroom lying on the bed in a fetal position with her pants
and diaper removed with Hill standing behind her. The aide
confronted Hill and as he moved away from the victim the aide saw
feces and blood coming from the victim’s anal area. (T., p. 14) The
victim was transported to the hospital where an examination
determined that she had injuries consistent with vaginal and anal
sexual assault. (T., p. 17) The victim remained.in the hospital until
August 21, [2004] when she died as a result of bronchial pneumonia.
ECF No. 15-1 at 125-26.
Given the arguments raised by Petitioner in support of his Petition, the Court notes the
factual recitation presented by the prosecution during Petitioner’s guilty plea colloquy before the
trial court.
August of 2004, June Loth was a 79 year old woman who suffered
from dementia and resided at Scenery Heights Personal Care Home
in Elizabeth Township where she lived since March of 2001.
She was a total care resident requiring complete assistance in all
activities of daily living, eating, bathing and toileting, not

ambulatory and spent most of the waking hours in a wheelchair or
recliner.
She was living on a pureed diet to prevent aspiration. She was being
tended by hospice care to assist her in all comfort measures while
she was in Scenery Heights Personal Care Home.
The testimony would have been that June Loth was pleasantly
unaware. She was a woman who would not ever cry out in pain or
ask for assistance, but she could communicate at the very basic
levels. And one of the things she liked to say was “Let’s go. Let’s
go.”
The personal care home was owned by Chester and Debra Wisnicki
(phonetic). It had 42 residents on August 13th going into the 14th of
August of 2004 — it has 38 residents. On the first level of Scenery
Heights was the level which people with mental disabilities or
patients that were totally non-ambulatory resided and there would
have been testimony that Dr. Ingrid Holman (phonetic), personal
care physician for the victim, saw her the day before and she had no
bruises, skin tears. She had a few small abrasions on her hand from
how someone had improperly moved her from a wheelchair, but
other than that, she was mentally fragile but healthy.
She was also tended - - there would be testimony from Lynn Fair
(phonetic), the hospice nurse, that she saw her on the 12th and she
was doing just fine.
Several days prior to this incident, the Defendant is allowed to reside
within the premises of Scenery Heights. He was supposed to be
living at an off-site home. A state representative asked the owners
of Scenery Heights, since the Defendant and his son were homeless,
would they help him out with a rental property; however, Mr. Hill
was allowed access into Scenery Heights without question. He was
not employed there, and he was allowed to come and go in and out
of these premises without question by the owners.
There would be testimony that various employees, this did cause
them concern, but they felt that the Wiznickis had it handled and he
was to be working there in the kitchen or doing odd jobs.
The testimony would have been from Lynn Rudy that she was the
day caretaker for June Loth and she was doing just fine during the
day of August the 13th of 2004. She ate her dinner, pureed diet; she
was cleaned up, changed into her bed clothing and went to bed.
Testimony would have been from Mary Briggs that June slept
through the night. She was incontinent so she wore a diaper. She

was tended to during the night; she was doing fine. Her body had no
skin tears except for some small bruises on her hand.
The testimony would have been some time during the early morning
hours of midnight that Mary Briggs encounters the Defendant in a
common living area where it is sort of like a living room, television
room, and the Defendant appears to be intoxicated. He is singing
along to the radio and laying on the couch. This disturbs Mary
Briggs, but she feels he must be allowed to be there if he is there,
especially at night.
The testimony would have been also that Catherine Evans
encountered the Defendant during the early evening hours and asked
once again, “What are you doing there,” and got no real answer.
Mary Briggs would have testified that at approximately 4:30, as is
the custom there, she begins to get the residents up for breakfast,
and that she gave a bed bath to June Loth, changed her diaper, put
her in a little sweat suit outfit and put her in the wheelchair and
wheeled her out to a small table out in the common area to wait
breakfast, that June was always the first person she got up, and then
Mary went back to take care of June’s roommate. That June would
never get out of the wheelchair. She was not able to do anything,
and she gave her some books to look at. She liked to look at books
and play with paper.
That when Mary came out of the room with Alice Kelly, June was
gone. Her wheelchair was gone and she panicked. She ran up and
down the halls looking for June, and as she encountered a room, the
rooms were looked through. She sees a light under a room that is
vacant and cleaned and sanitized, waiting for a new resident, and
she knows there is no one to be in there.
She pushes open the door, and when she pushes open the door, she
sees the Defendant. His pants are undone; June Loth is laying on the
bed. She does not have her pants/slacks on. Her diaper has been
removed and is laying on the bed.
June is laying in the fetal position with her back end facing the
Defendant’s genital area. Mary screams at him and asks him what
he is doing. He says that he is changing June because she had
diarrhea.
He then attempts to push Mary out of the room and turns off the
light. There is no feces on the Defendant at all, but when he does
move away to turn off the light, she sees feces and blood coming
from the anal area of June.

Mary then obviously becomes panicked and scared, and the
testimony would have been that she ran for help and ran upstairs to
see the aide upstairs, Catherine Evans.
Testimony would have been that Catherine Evans and Mary Briggs
went back downstairs. The Defendant stuck to his story that he was
cleaning June up, which everyone that works there knew that was
not true, that June was a very modest woman and a female would
clean June or change her, and you would never change anybody in
a vacant, clean, sanitized room.
When they went in there, June - - they noticed numerous injuries,
and I’m going to mark these for the Court. Your Honor, I note right
now they will be a little out of order. I have marked these 3 through
10. The testimony would have been - - and I move for admission - -
Hook ok ok
That from Mary Briggs, Lynn Rudy who then responded to the home
and then from Lynn Fair and Dr. Holman, these injuries did not exist
prior to the early morning hours of August 14th. The testimony
would have been that she had abrasions to her face, her knees, her
arms and her hand.
ok ok Kk
The testimony would have been then that the owner came down. The
staff attempted to have him call 911. He decided that he was going
to go and drive to his daughter’s house, which is the administrator,
rather than call 911.
The testimony would be eventually, within a few minutes, Lynn
Rudy responds, the day caretaker, and Catherine and Lynn and Mary
contact 911.
The Defendant denied that he had anything to do with the assault on
June. Testimony would have been from Dr. Dillon Gallon (phonetic)
that the victim was transported to Jefferson Medical Center and that
based upon the examination, although he was not able to do a full
gynecological examination, that the injuries suffered by June Loth
are consistent with sexual assault anally and vaginally, that she .
suffered severe bruising and contusions to her anal area as well as
the other abrasions that the Court saw.
ook ok ok

The testimony would have been that Ms. Loth was admitted to
Jefferson Memorial Hospital and as she was there, she began to
decline. She developed bronchial pneumonia from aspiration.
From the moment that she was found, she was nonresponsive. Her
dementia, she never could go back to baseline, Your Honor. That
she was non-ambulatory, nonverbal, and as a result of this trauma,
she was hospitalized, developed bronchial pneumonia.
Due to the fact that there was hospice involved, comfort measures
only were given to Ms. Loth, and as a result of the bronchial
pneumonia, she dies on August 21, 2004.
I will mark as Commonwealth Exhibit No. 11 - - an autopsy was
performed at Lab Case No. 04462 on August 21, 2004.
Anatomic diagnoses are as follows: Acute bronchial pneumonia;
Subpart 2, history of physical assault with following trauma noted
clinically on August 14, 2004; Subpart 3, clinical history of
dementia; Subpart 4, anterior sclerotic cardiovascular diagnosis.
It was the opinion of Dr. Shaun Ladham that June Loth, 79 years
old, white female, died as a result of acute bronchial pneumonia,
physical assault which was documented clinically as contact
fracture. This opinion is to a reasonable degree of scientific certainty
by Dr. Shaun Ladham.
ok Ok Ok
A search of Scenery Heights yielded the following evidence: Back
in the common room, I guess you would call it, a lounge area,
underneath a sofa were found a pair of blue jeans and a pair of
underwear.
The testimony would have been that at the time of the assault, the
Defendant was wearing a regular sort of pair of Levi jeans. Later he
was found to be wearing a painter style pair of blue jeans.
The testimony would have been from Detective - - Lieutenant
concerning that under this sofa, they found a pair of blue jeans and
a pair of Jockey underwear.
In addition, in an adjacent bathroom, there was feces all over it, on
the floor and on the sink, which he would have testified looked as if
someone was attempting to clean themselves up.
ok He ek

Those items were submitted to the Office of the Medical Examiner,
Division of Laboratories, and Tom Myers would have testified to a
reasonable degree of scientific certainty that there is semen
consistent with the Defendant’s blood type on the victim’s slacks.
If I may, Your Honor, I realized I missed something. That when
Lynn Rudy and Catherine Evans entered the room where June was
attacked, they found feces and fecal matter on her lips and teeth and
her lower teeth. They used a washcloth to wipe it out of her mouth.
It was tested and found to be positive for fecal matter.
That the underwear of the Defendant contained the blood of the
victim. That the diaper contained the victim’s blood, and there was
fecal matter soaked in both the underwear and the blue jeans.
ok ok ok ok
The Defendant was interviewed by Detective Carpiko. He denied
having any sexual contact with the victim. He claimed that he was
drinking that night and that he didn’t know what happened.
With the admission of all of these exhibits, Your Honor, the
Commonwealth would have rested.
Plea/Sentencing Hr’g Tr. dated Feb. 5, 2008, at 9-22 (oral motions omitted).
Petitioner did not file post sentence motions or a direct appeal. ECF No. 1 at 2.
Accordingly, the conviction became final 30 days later, on March 6, 2008. Pa. R.A.P. 903.
However, more than a decade later, on or about August 31, 2018, Petitioner filed a pro se
Motion for Post Conviction Collateral Relief pursuant to the Pennsylvania Post Conviction Relief
Act (“PCRA”), 42 Pa. C.S.A. § 9541, et seq. ECF No. 15-1 at 45. Although received by the state
court on August 31, 2018, it was signed by Petitioner on August 8, 2018. Id. at 52. Accordingly,
this Court presumes that the PCRA petition has an effective filing date of August 8, 2018. See,
e.g., Com. v. Little, 716 A.2d 1287, 1288-89 (Pa. Super. Ct. 1998).
PCRA counsel was appointed, ECF No. 15-1 at 54, who submitted a no-merit letter and
moved to withdraw on January 22, 2019. Id. at 70. The PCRA trial court granted the motion to
withdraw and noticed its intent to dismiss the PCRA petition on January 29, 2019. Id. at 91.

Petitioner responded to the PCRA trial court’s notice on February 19, 2019. Id. at 94. The trial
court dismissed the PCRA petition as untimely on February 26, 2019. Id. at 107.
Petitioner appealed on March 1, 2019. Id. at 108. After remanding the case to the trial
court for discovery, id. at 142-44, and briefing, id. at 145 and 482, the Pennsylvania Superior
Court affirmed the dismissal of the PCRA petition as untimely. Hill, 2019 WL 6972643, at *1.
Petitioner sought leave to appeal from the Pennsylvania Supreme Court on
January 6, 2020. ECF No. 15-1 at 514 and 552. Allocatur was denied on May 27, 2020. Id. at
555.
Pursuant to the prisoner mailbox rule, the instant federal habeas action is deemed to have
been initiated on November 10, 2020. ECF No. 1 at 15. See Burns v. Morton, 134 F.3d 109, 113
(3d Cir. 1998) (“we hold that a pro se prisoner’s habeas petition is deemed filed at the moment he
delivers it to prison officials for mailing to the district court.”).
In the instant Petition, Petitioner raises three grounds for federal habeas relief.
GROUND ONE: The Petitioner's Rights under the VI Amendment to effective assistance of
counsel were violated when counsel knowingly provided the petitioner with false
information about the victims medical records.
(a) Supporting facts[:] The Petitioner was informed by counsel that his actions and his
actions alone caused the death of the victim. After careful review of the medical records
by a medical expert, it becomes apparent that the death of the victims was cause by many
other contributing facts as well as people, but not the petitioner as stated by defense
counsel to the petitioner.
GROUND TWO: The Petitioners rights under the VI Amendment to effective assistance of
counsel was violated when counsel failed to obtain an expert medical professional to
review and dispute the states finding of the victims medical records.
(a) Supporting facts[:] Counsel for the Petitioner relied only on the state finding in the
medical records and failed to obtain an expert in the field of medical for the defendant.
The states finding after careful review were found to be faulty in all most all areas.
GROUND THREE: The Petitioner’s rights under the VIII Amendment were violated by the
State Courts denying the PCRA/ Appeals because their opinion that Newly Discovered

Evidence does not apply and timebarred basing their opinion in an area of expertise that
they do not possess.
(a) Supporting facts[:] The State Court denied the PCRA/Appeals saying it was time
barred basing their opinion in an area of medical review that none of the courts possess.
The Courts did not order a hearing in this matter nor did they seek the expertise medical
experts to explain the medical records that were before them.
ECF No. 1 at 5, 7, and 8. There is no fourth ground for relief in the Petition. Id. at 10.7
Respondents answered the Petition on September 23, 2021. ECF No. 15. Petitioner
submitted a Traverse November 29, 2021. ECF No. 22.
This Court has thoroughly considered the parties’ filings as well as the state court record
of Petitioner’s underlying convictions. The Petition is ripe for consideration.
I. THE AEDPA STATUTE OF LIMITATIONS
The first consideration in reviewing a federal habeas corpus petition is whether the petition
was timely filed within the applicable statute of limitations. In 1996, Congress enacted the
Antiterrorism and Effective Death Penalty Act (the “AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214, which generally established a strict one-year statute of limitations for the filing habeas
petitions pursuant to Section 2254. The applicable portion of the statute is as follows:
(d)(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;

? Petitioner renumbers and rewords these grounds in his Traverse; however, the grounds asserted
in the Petition remain substantively the same in the Traverse. See generally ECF No. 22. See also
Rule 2(c) Rules Governing Section 2254 Petitions. While Petitioner appears to attempt to assert a
procedurally improper additional ground for relief as Ground Three in his Traverse, in reality, that
is just a response to several arguments raised by Respondents in the Answer. ECF No. 22 at 28-
31. Accordingly, this Court will address the grounds as they are raised in the Petition.
10

(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.
(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.
28 U.S.C. § 2244(d).
The United States Court of Appeals for the Third Circuit has held that the statute of
limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner,
379 F.3d 113, 122 (3d Cir. 2004), cert. denied sub nom. Fielder v. Lavan, 543 U.S. 1067 (2005).
Thus, in analyzing whether a petition for writ 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 individual claims raised in the petition. Typically, this is the
date on which the petitioner’s direct review concluded and the judgment became “final” for
purposes of triggering the one-year period under Section 2244(d)(1)(A). 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).
Third, the court must determine whether any of the other statutory or equitable exceptions should
be applied on the facts presented. See, e.g., Munchinski v. Wilson, 807 F. Supp. 2d 242, 263 (W.D.

11

Pa. 2011), aff'd, 694 F.3d 308 (3d Cir. 2012) (citing Nara v. Frank, No 99-5, 2004 WL 825858, at
*3 (W.D. Pa. Mar. 10, 2004)).
TL. LEGAL ANALYSIS
A. Grounds One and Two of the Petition are untimely.
In Ground One and Ground Two, Petitioner attacks the alleged ineffective assistance of
counsel leading up to his guilty plea. Accordingly, Grounds One and Two trigger under Section
2244(d)(1)(A) on the date on which Petitioner’s conviction became final. As stated above, that
date is March 6, 2008. Thus, in order to be timely under 28 U.S.C. § 2244(d), Grounds One and
Two would have to have been submitted in a petition filed within a year of that date — or on or
before March 6, 2009.
But no Petition had been filed by March 6, 2009. Nor was any state court post conviction
petition filed by that date that would toll the statute of limitations. As such, Ground One and
Ground Two are facially untimely.
B. Ground Three is timely.
At Ground Three, on the other hand, Petitioner complains of alleged errors by the state
court applying state law during Petitioner’s PCRA proceedings. ECF No. 1 at 8 (“Petitioner’s
rights under the VIII Amendment were violated by the State Courts denying the PCRA/ Appeals
because their opinion that Newly Discovered Evidence does not apply and timebarred basing their
opinion in an area of expertise that they do not possess”). Thus, it did not trigger until Petitioner’s
PCRA proceedings ended when the Pennsylvania Supreme Court denied allocatur on May 27,
2020. ECF No. 15-1 at 555. Accordingly, in order to be timely, Ground Three would have to have
been asserted on or before May 27, 2021. 28 U.S.C. § 2244(d). Because the Petition is deemed
filed on November 10, 2020, ECF No. 1 at 15, Ground Three is timely.

12

C. Petitioner has not demonstrated entitlement to equitable tolling for Grounds One
and Two.
In Holland v. Florida, 560 U.S. 631 (2010), the United States Supreme Court affirmed the
availability of equitable tolling of the AEDPA’s one year statute of limitations under appropriate
circumstances. In its opinion, the Supreme Court first underscored that the one-year statute of
limitations in the AEDPA was not jurisdictional, and “does not set forth ‘an inflexible rule
requiring dismissal whenever’ its ‘clock has run.’” Id. at 645 (quoting Day v. McDonough, 547
U.S. 198, 208 (2006)). Given that habeas corpus is, at its heart, an equitable form of relief, and
with no well-defined congressional intent to the contrary, the Supreme Court concluded that it is
proper, under the principles of equity, to toll the statutory one year period for filing a petition under
Section 2254 in certain cases. Id. at 646-47.
In order for a delay in filing a habeas petition to qualify for equitable tolling, a petitioner
must show ““(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.” Id. at 649 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). “Mere excusable neglect is not sufficient.” Miller v.
New Jersey State Dep’t of Corr., 145 F.3d 616, 619 (3d Cir. 1998). Additionally, “[iJn non-capital
cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found
to rise to the ‘extraordinary’ circumstances required for equitable tolling.” Fahy v. Horn, 240 F.3d
239, 244 (3d Cir. 2001) (citing cases).
While Holland did not involve an appeal from a decision of a court within the Third Circuit,
it affirmed the practice of courts within this circuit of granting equitable tolling in cases where the
above-mentioned conditions had been met. See, e.g., LaCava v. Kyler, 398 F.3d 271, 275-76 Gd
Cir. 2005). Importantly, the United States Court of Appeals for the Third Circuit has emphasized
that “[e]quitable tolling is appropriate when ‘the principles of equity would make the rigid

13

application of a limitation period unfair[.]’” Id. at 275 (quoting Miller, 145 F.3d at 618).
Additionally, it should be applied only where it is “demanded by sound legal principles as well as
the interests of justice.” Id. (internal quotes and citations omitted).
Applying this standard to the present matter, it is apparent that there is nothing in the record
before this Court that would support the equitable tolling of the AEDPA’s statute of limitations in
this case. To the contrary, as the Superior Court recognized, all of the medical evidence and expert
reports that Petitioner attempts to raise as bases for Grounds One and Two here were in the
possession of Petitioner’s attorney, and “at no point does Appellant explain why he could not have
discovered them a decade ago, merely by asking for his plea counsel’s file.” Hill, 2019 WL
6972643, at *2. Petitioner has failed to demonstrate diligence, and thus the application of equitable
tolling, as to Grounds One and Two, is not appropriate.
D. Petitioner has not demonstrated actual innocence.
The statute of limitations also may be tolled if a petitioner establishes that he is actually
innocent of the charges of which he has been convicted. McQuiggan v. Perkins, 569 U.S. 383,
398-99 (2013) (recognizing an actual innocence exception to the AEDPA’s statute of limitations).
An actual innocence claim must be based on “new reliable evidence — whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence [ ] that was not
presented at trial.” Schlup v. Delo, 513 US. 298, 324 (1995).
That said, the Supreme Court cautions “that tenable actual-innocence gateway pleas are
rare: ‘[A] petitioner does not meet the threshold requirement unless he persuades the district court
that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’” McQuiggan, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329).
“The gateway should open only when a petition presents ‘evidence of innocence so strong that a

14

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.’” Id. at 401 (quoting Schlup, 513 U.S. at 316).
“«'TThe timing of the [petition]’ is a factor bearing on the ‘reliability of th[e] evidence’ purporting
to show actual innocence.” Id. at 386-87 (quoting Schlup, 513 U.S. at 332).
In the Third Circuit, “when a petitioner asserts ineffective assistance of counsel based on
counsel’s failure to discover or present to the fact-finder the very exculpatory evidence that
demonstrates his actual innocence, such evidence constitutes new evidence for purposes of the
Schlup actual innocence gateway.” Reeves v. Fayette SCI, 897 F.3d 154, 164 (3d Cir. 2018), as
amended (July 25, 2018).
Here, the alleged new, reliable evidence of actual innocence asserted by Petitioner
includes the victim’s medical records. ECF No. 15-1 at 189-481. It further includes the alleged
opinion of an inmate, who was a former physician, that the victim did not die as a result of
Petitioner having raped her. Instead, Petitioner indicates in his briefing that this individual
concluded that “[t]his lady has clearly died from a failure to treat and Morphine overdosage.”
ECF No. 22 at 23. It is noteworthy that, while Petitioner recites the purported findings of this
alleged former physician in his briefing, id. at 17-23, the record before this Court does not include
a report, affidavit, declaration, or signed statement by this individual.
Petitioner also relies on a letter prepared for Petitioner’s trial counsel on January 9, 2007,
by Dr. Howard Reidbord. ECF No. 15-1 at 83. In this letter, Dr. Reidbord purports to have to
have reviewed the victim’s relevant medical records, as well as the autopsy report of the victim.
Dr. Reidbord’s letter states, in pertinent part:
An autopsy was performed on August 21, 2004. The cause of death
was attributed to acute bronchopneumonia. [The victim, Ms. Loth]
was noted to be malnourished. Skin trauma was noted.

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Subcutaneous and subgaleal hemorrhage was seen in the right
frontal area. Other findings were not of clinical significance.
Based upon the medical and others records reviewed, it is my
opinion, expressed with a reasonable degree of medical certainty
that Mrs. Loth died as a result of acute bronchopneumonia with
malnourishment as a contributory factor. There were no other
findings at autopsy that would account for death.
Regarding the manner of death, the role of the physical assault as
initiating a chain of events causing death is the major consideration.
However, it light of the family's refusal to allow blood cultures or
certain medications, the question arises as to whether sufficiently
ageressive treatment was instituted during the hospitalization. For
this reason, it is my opinion, expressed with a reasonable degree of
medical certainty, that the manner of Mrs. Loth's death should be
classified as undetermined.
All opinions expressed herein were done so with a reasonable degree
of medical certainty.
Id. at 84.
Petitioner conceded that all of these records were in the possession of his trial counsel.
ECF No. 22 at 32. He argues that he never was informed of the same, but instead was advised by
counsel that the prosecution could prove beyond a reasonable doubt that Petitioner was
responsible for the victim’s death. Id. at 24 and 26.
It is unclear when Petitioner came into possession of any of the evidence in this case. For
example, in his Traverse, Petitioner asserts that he did not acquire the evidence or become.aware
of its contents until after the Pennsylvania Superior Court remanded his PCRA case to the trial
court for discovery in June of 2019. Id. at 24. However, in his pro.se opposition to the PCRA
trial court’s notice of intention to dismiss, which is time-stamped February 19, 2019, Petitioner
argues that he received various medical reports “on appeal” for the first time, which allegedly were
reviewed by the same inmate former doctor. ECF No. 15-1 at 94-100.

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Here, Petitioner fails to meet his burden under McQuiggan and Schlup.
First, the existence of the victim’s medical records, as well as the autopsy report, were
known to Petitioner at least at the time of his guilty plea colloquy. Plea/Sentence Hr’g Tr. dated
Feb 5. 2008, at 18 (“I will mark as Commonwealth Exhibit No. 11 -- an autopsy was performed
at Lab Case No. 04462 on August 21, 2004.”). Id. at 17 (“I will mark for this Court
Commonwealth’s Exhibit 1 and 1. Commonwealth Exhibit No. | are the Scenery Heights medical
records as well as the hospice medical records that are contained therein. And Commonwealth’s
Exhibit No. 2 are the Jefferson Hospital medical records which would document the findings of
Dr. Dillon Gallon (phonetic).”). Petitioner’s counsel stated on the record that she had seen these
documents prior to their admission into evidence by the Court. Id. at 17 and 19. They are not
new.
Second, the general content of those medical records and the autopsy report — if not all of
the page-by-page specifics — were presented at Petitioner’s guilty plea colloquy. The prosecution
stated on the record that the victim “was living on a pureed diet to prevent aspiration ,” id. at 9 and
12, that she developed bronchial pneumonia from aspiration at the hospital after her rape, id. at 18,
that, because she was in hospice, only comfort measures were provided, id. at 11 and 18, and that
she died from bronchial pneumonia on August 21, 2004, id. at 18-19. The results of the autopsy
were read into the record. Id. at 18-19. Any potential disconnect in causation between Petitioner’s
rape of the victim, and her death by pneumonia in the hospital a week later, also is not new
evidence.
Moreover, for these reasons, even if the existence of Dr. Reidbord’s letter of
January 9, 2007 was unknown to Petitioner, the lack of sufficiently aggressive treatment that Dr.
Reidbord referenced as the basis for his opinion that the manner of the victim’s death should have

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been classified as “undetermined” was known to Petitioner — at the very latest — at his plea hearing.
Compare ECF No. 15-1 at 84 (“Regarding the manner of death, the role of the physical assault as
initiating a chain of events causing death is the major consideration. However, it [sic] light of the
family’s refusal to allow blood cultures or certain medication, the question arises as to whether
sufficiently aggressive treatment was instituted during hospitalization.”) with Plea/Sentencing
Hr’g Tr. dated Feb. 5, 2008, at 18 (“due to the fact that there was hospice involved, comfort
measures only were given to Ms. Loth, and as a result of the bronchial pneumonia, she died on
August 21, 2004).
Fourth, the alleged opinion of an inmate former doctor presented in Petitioner’s various
briefings is not reliable evidence. Petitioner’s recitation of this alleged opinion is not supported
by any declaration, report, sworn statement, testimony — or even a signature — to indicate that this
individual reviewed the victim’s medical records, or even expressed the opinion that Petitioner
was not responsible for the victim’s death. The recitation provided by Petitioner is just argument,
not evidence. ECF No. 22 at 17, 21-23. Petitioner bears the burden “to demonstrate that more
likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a
reasonable doubt—or, to remove the double negative, that more likely than not any reasonable
juror would have reasonable doubt.” House _v. Bell, 547 U.S. 518, 538 (2006). Petitioner’s
restatement of the inmate former doctor’s purported conclusions based on the victim’s medical
records fails to rise to this level.
To the extent that Petitioner argues that the medical evidence itself supports the conclusion
that the victim died from other causes — such as an overdose of morphine or a failure to treat, ECF
No. 22 at 23 — there is no new reliable medical expert evidence on the record that would support

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such a conclusion. Petitioner was aware that the victim was given only comfort care because she
was in hospice. Plea/Sentence Hr’g Tr. dated Feb 5. 2008, at 18.
Further, it is worth noting that the record indicates that the victim’s medical records prior
to, and after her rape were reviewed by Dr. Reidbord in the course of preparing his letter. ECF
No. 15-1 at 83-84. Dr. Reidbord noted that the victim was given a morphine drip on the day after
admission to the hospital after she was raped, and that the morphine dose was increased on August
21, 2004, after she was “had increasingly labored respirations[,]” and that she stopped breathing
90 minutes later. Id. at 84. See also ECF No. 15-1 at 321 and 339. See also id. at 291 (“Family
states that bolus of Morphine effective and patient much more comfortable today. , [sic] less crying
noted, hands not clenched today, arms and legs much more relaxed.”).
But even after reviewing the victim’s medical records, Dr. Reidbord did not conclude that
the victim had died of a morphine overdose. Instead, he opined to Petitioner’s counsel that,
“(blased upon the medical and others records reviewed, it is my opinion, expressed with a
reasonable degree of medical certainty that Mrs. Loth died as a result of acute bronchopneumonia
with malnourishment as a contributory factor. There were no other findings at autopsy that would
account for death.” ECF No. 15-1 at 84.
The autopsy report further does not support Petitioner’s actual innocence claim. Instead,
it supports the conclusion that the victim died from pneumonia contracted while she was
hospitalized. Id. at 189-208; id. at 190 (OPINION: June Loth, a 79 year old female, died as a result
of acute bronchopneumonia. A physical assault, which was documented clinically, is a
contributory factor. MANNER OF DEATH: Homicide.”).
Finally, as the Superior Court aptly explained in its opinion affirming the denial of
Petitioner’s PCRA appeal, none of this evidence established that Petitioner was actually innocent

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of Third Degree Murder under Pennsylvania law. Hill, 2019 WL 6972643, at *3 n.4. Instead “‘So
long as the defendant’s conduct started the chain of causation which led to the victim's death,
criminal responsibility for the crime of homicide may properly be found.’” Id. (quoting Com. v.
Shoup, 620 A.2d 15, 18 (Pa. Super. Ct. 1993). See also id. (“Our Supreme Court has upheld a
second-degree murder conviction upon similar facts. See Com. v. Johnson, 284 A.2d 734, 734 (Pa.
1971) (affirming second-degree murder conviction where victim died of bronchopneumonia
developed while she was being treated for burns caused by the defendant).”).
A thorough review of the entirety of the record before this Court — including the medical
evidence submitted by Petitioner as part of his PCRA proceedings — supports the conclusion that
the elderly, infirm victim contracted aspiration pneumonia in the hospital, to which she was sent
as a result of being raped by Petitioner. She was in hospice, was provided only comfort care, and
she perished from that pneumonia about one week later. ECF No. 15-1 at 83-84, and 189-481 All
of this was as described by the prosecution during Petitioner’s guilty plea colloquy, as set forth
above.
Thus, the undersigned concludes that Petitioner has failed to establish that, “in light of
new evidence, no juror, acting reasonably, would have voted to find [Petitioner] guilty beyond a
reasonable doubt.” McQuiggan, 569 U.S. at 386. Petitioner has failed to make a gateway claim
of actual innocence to overcome the untimeliness of Grounds One and Two of the Petition.
Accordingly, Grounds One and Two of the Petition are denied.
E. Ground Three is not cognizable in federal habeas.
At Ground Three, Petitioner attacks the state courts’ finding that his claims were time-
barred under the PCRA. Specifically:
GROUND THREE: The Petitioner’s rights under the VIII Amendment were violated by the
State Courts denying the PCRA/ Appeals because their opinion that Newly Discovered

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Evidence does not apply and timebarred basing their opinion in an area of expertise that
they do not possess.
(a) Supporting facts[:] The State Court denied the PCRA/ Appeals saying it was time
barred basing their opinion in an area of medical review that none of the courts possess.
The Courts did not order a hearing in this matter nor did they seek the expertise medical
experts to explain the medical records that were before them.
ECF No. 1 at 8.
This Court’s ability to grant habeas relief is limited to violations of the “Constitutional or
laws or treaties of the United States.” 28 U.S.C. § 2254(a). Claims of error by the PCRA trial
court or PCRA Superior Court simply are not cognizable in a federal habeas action. See, e.g.,
Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“The federal courts are authorized to
provide collateral relief where a petitioner is in state custody or under a federal sentence imposed
in violation of the Constitution or the laws or treaties of the United States. 28 U.S.C. §§ 2254,
2255. Thus, the federal role in reviewing an application for habeas corpus is limited to evaluating
what occurred in the state or federal proceedings that actually led to the petitioner’s conviction;
what occurred in the petitioner’s collateral proceeding does not enter into the habeas calculation.”)
See also Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004) (“habeas proceedings are not the
appropriate forum for Lambert to pursue claims of error at the PCRA proceeding.”’)
Accordingly, federal habeas relief based on Ground Three is denied.
F. Certificate of Appealability
Finally, a certificate of appealability will be denied because jurists of reason would not find
it debatable whether Grounds One and Two of the Petition were barred by the AEDPA’s one-year
statute of limitations, or that he had failed to establish his actual innocence or entitlement to
equitable tolling, or that Ground Three was not cognizable. See, e.g., Slack v. McDaniel, 529 U.S.
473, 484-85 (2000).

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IV. CONCLUSION
For the foregoing reasons, the Petition, ECF No. 1, is denied, and a certificate of
appealability is denied. An appropriate Order follows.

Dated: March G , 2024 BY THE COURT:
ee enn □
a 4, ae ¢ £
Cif f ? SY é ¢
A 1st htinugk. PEE Ly»
MAUREEN P.KELLY ~ we if
UNITED-SPATES MAGISTRATEVU DGE
ce DWIGHT M. HILL
HL0129
S.C.I. Camp Hill
2500 Lisburn Rd.
Camp Hill, PA 17011
All counsel of record (via CM/ECF)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419513. Public record. Not legal advice.