Bernal v. Houser

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LUIS BERNAL, : No. 4:21¢v1183

Petitioner (Judge Munley)

v.

SUPERINTENDENT HOUSER, ef al., :

Respondents

| MEMORANDUM

| Petitioner Luis Bernal (“Bernal”) filed the instant petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction

imposed in the Court of Common Pleas of Huntingdon County, Pennsylvania.

(Doc. 1). For the reasons discussed below, the court will dismiss the petition as

| untimely.

| |. State Court Background’

On September 11, 2015, a jury convicted Bernal of three counts of

possession of a controlled substance with intent to deliver, two counts of corrupt

organizations, and one count each of conspiracy, criminal use of a

| 1 A federal habeas court may take judicial notice of state court records. Minney v.

| Winstead, 2013 WL 3279793, at *2 (W.D. Pa. June 27, 2013); see also Reynolds v.

| Ellingsworth, 843 F.2d 712, 714 n.1 (3d Cir. 1988). Accordingly, in reviewing this petition, the

| court takes judicial notice of the publicly available dockets in the Court of Common Pleas of

| Huntingdon County, the Pennsylvania Superior Court, and the Pennsylvania Supreme Court.

communication facility, and dealing in proceeds of unlawful activities. See

Commonwealth v. Bernal, https://ujsportal.pacourts.us, electronic docket numbe

CP-31-CR-0000615-2014. On January 5, 2016, the trial court sentenced Bernal

to an aggregate sentence of 16 to 32 years’ imprisonment. See id. Bernal filed

timely direct appeal, and, on February 27, 2017, the Pennsylvania Superior Cou

affirmed his judgment of sentence. Commonweaith v. Bernal, No. 1129 MDA

2016, 2017 WL 758505 (Pa. Super. Feb. 27, 2017). Bernal did not file a petition

for allowance of appeal with the Pennsylvania Supreme Court. Thus, his

judgment of sentence became final on March 29, 2017, upon the expiration of th

30-day period to file a petition for allowance of appeal with the Pennsylvania

Supreme Court. See PA. R.A.P. 1113(a) (30 days to file petition for allowance of

appeal).

On February 20, 2018, Bernal filed a timely pro se petition for post-

conviction collateral relief pursuant to the Post Conviction Relief Act (“PCRA"”), 4

Pa. CONS. STAT. §§ 9541-46. See Bernal, CP-31-CR-0000615-2014. Counsel

subsequently filed an amended petition. (See Doc. 23-2, p. 3). On January 21,

2020, the PCRA court denied the petition. (Doc. 23-2). Bernal filed a timely

appeal to the Pennsylvania Superior Court. Commonwealth v. Bernai, No. 258

MDA 2020 (Pa. Super.). On January 21, 2021, the Superior Court affirmed the

PCRA court’s denial of the petition. Commonwealth v. Bernal, 248 A.3d 495

(Table), 2021 WL 218035 (Pa. Super. Jan. 21, 2021). However, Bernal did not

file a petition for allowance of appeal with the Pennsylvania Supreme Court.

On February 20, 2018, Bernal filed a second pro se PCRA petition. See

Bernal, CP-31-CR-0000615-2014. Bernal subsequently retained private counse

who filed an amended petition on May 10, 2021. (See Doc. 23-8). On June 30,

2021, the PCRA court dismissed the petition as untimely. (Doc. 23-6). Bernal

filed a timely appeal to the Pennsylvania Superior Court. Commonwealth v.

Bernal, No. 974 MDA 2021 (Pa. Super.). On September 13, 2022, the Superior

Court affirmed the PCRA court’s dismissal of the petition as untimely.

Commonwealth v. Bernal, 285 A.3d 925 (Table), 2022 WL 4138187 (Pa. Super.

Sept. 13, 2022). Bernal sought allowance of appeal in the Pennsylvania

Supreme Court, which was denied on February 21, 2023. Commonwealth v.

Bernal, No. 447 MAL 2022, 293 A.3d 246 (Table) (Pa. Feb. 21, 2023).

On or about June 21, 2021, Bernal filed the instant federal habeas petition.

(Doc. 1). In response, Respondents argue that the petition must be dismissed a

untimely. (Doc. 23). The petition is ripe for resolution.

ll. Discussion

The court shall “entertain an appiication for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must b

timely filed under the stringent standards set forth in the Antiterrorism and

Effective Death Penalty Act of 1996 (““AEDPA’”), Pub.L. No. 104-132, 110 Stat.

1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d)(1). Specifically, a state □□□□□□□□□

requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of

limitations that provides as follows:

(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;

(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); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).

Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment

does not become final until appeals have been exhausted or the time for appeal

has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).

Bernal’s judgment of sentence became final on March 29, 2017, upon the

expiration of the 30-day period to file a petition for allowance of appeal with the

Pennsylvania Supreme Court. He had one year after his sentence became final

to file his federal habeas petition. The AEDPA statute of limitations under §

2254(d)(1)(A) expired on March 29, 2018. However, Bernal did not file the

instant petition until June 21, 2021, more than three years after the expiration of

the statute of limitations. Therefore, the instant petition must be dismissed

unless the statute of limitations is subject to statutory or equitable tolling, or the

actual innocence exception.

A. Statutory Tolling

Pursuant to 28 U.S.C. § 2244, the running of the limitations period is

suspended for the period of time when properly filed state post-conviction

proceedings are pending in any state court. See 28 U.S.C. § 2244(d)(2). Here,

the statute of limitations began running on March 29, 2017, and, absent any

tolling, would expire on March 29, 2018. However, pursuant to 28 U.S.C. §

2244(d)(2), when Bernal filed his first PCRA petition on February 20, 2018, the

AEDPA’s filing period was statutorily tolled? At that point, the AEDPA clock ran

for 328 days, with 37 days of the one-year filing period remaining. The statute

remained tolled until February 22, 2021, at the expiration of the 30-day period to

seek review with the Pennsylvania Supreme Court. See PA. R.A.P. 1113(a). On

February 22, 2021, the statute began running again, and the 37 days remaining

in which to file his federal petition expired on March 31, 2021. As a result, abser

equitable tolling or the applicability of the actual innocence exception, Bernal's

federal habeas petition filed on June 21, 2021, is 82 days late.

B. Equitable Tolling

Equitable tolling of the limitations period is to be used sparingly and only in

“extraordinary” and “rare” circumstances. See Satterfield vy. Johnson, 434 F.3d

185, 195 (3d Cir. 2006); LaCava v. Kyler, 398 F.3d 271, 274-75 (3d Cir. 2005). |

is only in situations “when the principle of equity would make the rigid applicatior

of a limitation period unfair” that the doctrine of equitable tolling is to be applied.

See Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003). Generally, a litigant

seeking equitable tolling must establish the following two elements: “(1) that he

2 During that time, on February 18, 2021, Bernal filed a second PCRA petition. The

state courts found the petition to be untimely. See Commonwealth v. Bernal, 285 A.3d 925

(Table), 2022 WL 4138187 (Pa. Super. Sept. 13, 2022). Bernal’s second PCRA petition did

not toll the statute of limitations to file a federal habeas petition because it was an untimely-

filed PCRA petition. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“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 § 2254(d)(2).”}. Accordingly, Bernal is not entitled to further

statutory tolling for the period during which his second PCRA petition was pending.

has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

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

that he or she 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. Moreover,

“the party seeking equitable tolling must have acted with reasonable diligence

throughout the period he seeks to toll.” Warren v. Garvin, 219 F.3d 111, 113 (2d

Cir. 2000) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)).

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, or (4) the court has misled a

party regarding the steps that the party needs to take to preserve a claim. See

Jones, 195 F.3d at 159; Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).

Here, Berna! claims an extraordinary circumstance was created by his first

PCRA counsel's ineffective assistance; specifically, PCRA counsel’s failure to fil

a petition for allowance of appeal after the Superior Court affirmed the denial of

his first PCRA petition. (Doc. 1). Upon review, it cannot be said that any

extraordinary circumstances prevented Bernal from timely filing his federal

habeas corpus petition.

Generally, ineffective assistance of counsel has not been considered an

extraordinary circumstance where the ineffectiveness was due to counsel’s

negligence or mistake. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). Fo

example, in non-capital cases, attorney error, inadequate research,

miscalculation, or other mistakes do not qualify as “extraordinary circumstances

sufficient to trigger equitable tolling. Id. Serious attorney misconduct, however,

may warrant equitable tolling. See Nara, 264 F.3d at 320 (claims of serious

attorney misconduct may provide a basis for equitable tolling), overruled on othe

grounds by Carey v. Saffold, 536 U.S. 214 (2002). Bernal’s claims of ineffective

assistance, premised on attorney error and alleged abandonment, do not rise to

the level of serious attorney misconduct, and thus will not be considered

extraordinary circumstances.

Bernal asserts that his first PCRA counsel failed to seek allowance of

appeal in the Pennsyivania Supreme Court. However, on May 9, 2000, the

Pennsylvania Supreme Court issued Order 218, which dispensed with the

requirement of pursuing discretionary appellate relief before the Pennsylvania

Supreme Court and provided that a petitioner has effectively exhausted available

state remedies for purposes of federal habeas relief upon presenting the claim te

the Superior Court. See Wenger v. Frank, 266 F.3d 218, 224-25 (3d Cir. 2001),

cert, denied, Wenger v. Kyler, 535 U.S. 957 (2002); Lambert v. Blackwell, 175

F.Supp.2d 776, 784-85 (E.D. Pa. 2001); Mattis v. Vaughn, 128 F.Supp.2d 249,

260-61 (E.D. Pa. 2001); Blasi v. Attorney General of the Commonwealth of

Pennsylvania, 120 F.Supp.2d 451, 466 (M.D. Pa. 2000). Bernal was not require

to petition for allowance of appeal following the Superior Court's adverse

decision in order to be deemed to have exhausted all available state remedies.

PCRA counsel did not abandon Bernal, as he properly pursued his claim □□□□□□□

the PCRA court and Superior Court.

Moreover, even crediting Bernal’s claim that his PCRA counsel failed to fil

a petition for allowance of appeal, Bernal became aware of the Superior Court’s

denial on January 28, 2021, when he received the Superior Court decision. (Se

Doc. 1, pp. 13, 15-18). Nevertheless, Bernal waited another five months before

filing the instant habeas petition. Bernal alleges that he pursued his rights

diligently—ultimately in the wrong forum—by filing a second PCRA petition.

(Doc. 3, p. 7). He further alleges that he was denied access to the prison law

library, and it took one week to receive a § 2254 form. (Id. at pp. 7-8). However

in his second PCRA petition, Bernal did not assert that his first PCRA counsel

was ineffective for failing to file a petition for allowance of appeal. (See Docs. 2°

8, 23-9, 23-10). Nor does he assert that he made any attempts to file a federal

habeas petition during that time. “The diligence required for equitable tolling

purposes is reasonable diligence, not maximum, extreme, or exceptional

diligence.” Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013) (citing Holland v.

Florida, 560 U.S. 631, 653 (2010)). The petitioner must have exercised such

reasonable diligence with respect to both the exhaustion of state remedies and

the filing of the federal habeas petition. See id.

Bernal demonstrated awareness of state and federal procedures. He

submitted an Inmate’s Request to Staff Member form on January 28, 2021, the

very day he received the Superior Court’s denial of his first PCRA petition, and

requested another PCRA petition “before [his] appeal right[]s expired.” (Doc. 1,

p. 15). He proceeded to file a second, pro se PCRA petition on February 18,

2021, 22 days after he received the Superior Court's decision. Bernal still waite

five months after receiving the Superior Court’s decision to file a federal habeas

petition, and over three years from the point that his conviction became final. H:

failed to file a protective § 2254 application prior to March 31, 2021, the

expiration of his AEDPA period, or—at the very least—upon receiving the

Superior Court’s decision on January 28, 2021. See Pace, 544 U.S. at 416

(petitioner may file “a ‘protective’ petition in federal court and ask{ ] the □□□□□□□□

court to stay and abey the federal habeas proceedings unti! state remedies are

exhausted”) (internal citations omitted); Darden v. Sobina, 477 F. App’x 912, 91§

10

(3d Cir. 2012) (not precedential) (petitioner failed to diligently pursue his federal

rights by not filing a “protective” federal petition while pursuing state collateral

relief); Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009) (petitioner may seek □

“protective” petition despite presenting only unexhausted claims). A litigant’s pre

se status does not insulate him from the “reasonable diligence” inquiry and his

lack of legal knowledge or legal training does not alone justify equitable tolling.

See 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 “fil[ed] 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). Bernal did not

diligently pursue his federal rights after he received the Superior Court decision

on January 28, 2021, and is not entitled to equitable tolling on that basis.

In sum, Bernal has failed to set forth any extraordinary circumstance or

acceptable excuse for his delay in filing the instant petition. The court thus finds

that Bernal has not met the demands of the equitable tolling doctrine to bring his

federal filing within the AEDPA one-year limitations period.

C. Actual Innocence Exception to the AEDPA Time Limitation

The Supreme Court has held that a convincing claim of actual innocence

will overcome § 2244's limitations period. McQuiggin v. Perkins, 569 U.S. 383

11

(2013). The actual innocence test requires the petitioner to supplement his clair

with new, reliable evidence of factual innocence. Schiup v. Delo, 513 U.S. 298,

324 (1995). The Supreme Court has explained that this is an exacting standard

“The miscarriage of justice exception, we underscore, applies to a severely

confined category: cases in which new evidence shows ‘it is more likely than no’

that no reasonable juror would have convicted [the petitioner]."" McQuiggin, 56

U.S. at 394-95 (quoting Schlup, 513 U.S. at 329).

Bernal does not assert his actual innocence. Nor does he present any ne'

evidence to show that “it is more likely than not that no reasonable juror would

have convicted [him].” McQuiggin, 569 U.S. at 395 (quoting Schlup, 513 U.S. ai

329). Absent a showing of new reliable evidence of factual innocence, Bernal is

not entitled to the actual innocence exception to the time-bar.

lll. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final orde

in a proceeding under 28 U.S.C. § 2254. A COA 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). “A petitioner satisfies this standard by demonstrating that jurists o

reason could disagree with the district court's resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to

12

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003). As the Supreme Court has explained,

[w]hen the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional!

claim, a COA 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). Bernal failed to demonstrate that

certificate of appealability should issue.

IV. Conclusion

The Court will dismiss Bernal’s application (Doc. 1) for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 as untimely, and a certificate of

appealability will not issue. A separate Order shall issue.

Date: July 8, 2024 /——_*

TDGE tA K-WMUNE

United tT)

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