Petition for Writ of Certiorari — Breon Powell, Petitioner v. John Rivello, Superintendent, State Correctional Institution at Huntingdon, et al.

Supreme Court briefJun 27, 2023

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NO. 23 _________________________________

SUPREME COURT OF THE UNITED STATES

BREON POWELL

Petitioner

vs.

SUPERINTENDENT HUNTINGDON, SCI, ET AL.

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Nicholas Casamento, Esquire

4 West Front Street

Media, PA 19063

Phone: (610) 565-5050

Fax: (610) 565-2980

Email: candrlawfirm@gmail.com

QUESTIONS PRESENTED

Did Circuit Court of Appeals err and thereby abuse its discretion and

commit error in denying due process to Appellant Powell when it denied a Certificate

of Appealability from the District Court’s denial of Petitioner’s claims in his Habeas

Corpus filing pursuant to 28 U.S.C. 2254 when it found that Petitioner did not use

“due diligence” in his pursuit of his habeas claim and thus his filing was untimely

pursuant to 28 U.S.C. 2254 when the United States District Court in which Appellant

could have filed his habeas petition was shut down to filings due to its own Orders of

closure related to the Covid-19 worldwide pandemic?

Did the Third Circuit Court’s denial of appealability by upholding the

District Court’s denial of Appellant’s habeas petition where the District Court found

that equitable tolling did not apply, even where the same District Court, by its own

Orders, had shut down its court to filings due to the worldwide pandemic, did that

create a “de-facto” alteration of the statute and denial of due process?

II.

TABLES OF CONTENTS

QUESTIONS PRESENTED ........................................................... i

II.

TABLES OF CONTENTS............................................................... ii

III.

TABLE OF AUTHORITIES ........................................................... iii

IV.

PETITION FOR WRIT OF CERTIORARI ..................................... 1

OPINIONS BELOW ....................................................................... 1

VI.

JURISDICTION.............................................................................. 1

VII.

CONSTITUTIOINAL PROVISIONS

INVOLVED ..................................................................................... 1

VIII. STATEMENT OF THE CASE ........................................................ 1-4

IX.

REASONS FOR GRANTING WRIT............................................... 4-8

CONCLUSION................................................................................ 8

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III.

TABLE OF AUTHORITIES

CASES

Fahy v. Horn,

240 F.3d 239 (3d Cir. 2001) ............................................................ 6

Holland v. Florida,

560 U.S. 631, 649 (2010) ................................................................. 23, 39

Marshall v. Hendricks,

307 F.3d 36, 82 (3d Cir. 2002) ........................................................ 33

Maury v. Davis,

No.2:12 cv-1043, 2020 WL 5088738,(E.D. Cal., Aug. 28, 2020) ..... 13

McGuiggin v. Perkins,

569 U.S. 383, 386 (2013). ................................................................ 41

Merritt v. Blaine,

326 F.3d 157, 168 (3d Cir.2003) ..................................................... 10

Monroe v. United States,

No. 4:17-cp-11, 2020 WL 6547646,

(E.D.V.A. Nov. 6, 2020) ................................................................... 13

Ross v. Varano,

712 F.3d 784, 803 (3d Cir. 2013)..................................................... 7, 23

Stone v. Powell,

428 U.S. 465, 494 (1976) ................................................................. passim

Urcinoli v. Cathel,

546 F.3d 269, 273 (3d Cir. 2008)..................................................... 39

STATUTES

28 U.S.C.§ 2253(c)(1) ................................................................................. passim

National Emergencies Act, 50 U.S.C. § 1601 ........................................... 46

Pub. L. No. 116-136, § 15002,

134 Stat. 281, 527-30 (2020). .......................................................... 55, 91

Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), .............................................. passim

The Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), ..................................................... 34

RULES

28 U.S.C. 2244(d)(1)(B) ............................................................................. 12

Local R. Civ. P. 72.1(IV). ........................................................................... 42

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IV.

PETITION FOR WRIT OF CERTIORARI

Breon Powell, an inmate currently incarcerated at the Huntingdon SCI, by and

through his attorneys, Nicholas J. Casamento Delaware County of Pennsylvania,

respectfully petition this Court for a Writ of Certiorari to review the judgement of the

United States Court of Appeals for the Third Circuit.

OPINIONS BELOW

The 3d Circuit’s decision on January 27, 2023, to deny Powell’s certificate of

appealability Appendix 2. And then said Circuit Court’s denial on March 29, 2023, of

a petition for rehearing where “a majority of the judges of the circuit in regular service

not having voted for rehearing”; Appendix 1.

VI.

JURISDICTION

The Third Circuit denied Petition for Rehearing on March 29, 2023. See Appendix

1. This Petition is timely filed pursuant to Supreme Court Rule 13.1. This Court has

jurisdiction under 28 U.S.C. 1254.

VII.

CONSTITUTIOINAL PROVISIONS INVOLVED

United States Constitution, Amendment V

United States Constitution, Amendment VI

United States Constitution, Amendment XIV.

VIII. STATEMENT OF THE CASE

Petitioner Breon Powell (Powell) was convicted, following a jury trial, of

Criminal Homicide and related offenses, in the case docketed at CP-09-CR-00035912012 in the Bucks County Court of Common Pleas. The jury, following a penalty

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phase hearing, determined that the sentence would be life without the possibility of

parole as opposed to the death penalty.

Following the imposition of that sentence, on December 9, 2013, Powell’s trial

counsel filed timely post-sentence motions which were denied by the Bucks County

Court of Common Pleas (Boylan, J) on or about April 3, 2014. Powell then filed a

direct appeal on or about April 22, 2014, and the Trial Court filed its Opinion on or

about January 21, 2016.

The direct appeal to the Superior Court of Pennsylvania in this matter was

docketed at 1312 EDA 2014.

The direct appeal was timely filed and litigated on

Powell’s behalf by Richard Fink, Esquire, and was denied on or about September 25,

2017. Petition for Allowance of Appeal was timely filed to the Pennsylvania Supreme

Court on or about October 24, 2017, docketed at 721 MAL 2017, and was denied on

April 3, 2018.

Powell began preparing his pro se Petition for Relief under the Post-Conviction

Relief Act (“PCRA”) and sent it by the prison mail system, which had recently been

overhauled per Pennsylvania’s State Prison authority and on or about September 21,

2018, said PCRA petition was marked filed.

Counsel for Powell, Bonnie-Ann Brill Keagy, Esquire, was appointed on or

about November 19, 2018. Counsel filed an Amended Petition for Relief under the

Post-Conviction Relief Act on or about March 29, 2019. An answer to the Amended

Petition was filed by the Commonwealth of Pennsylvania (hereinafter “Appellee”) on

or about April 15, 2019.

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Following that hearing, on April 26, 2019, the Trial Court issued an Order that

denied the Amended Post-Conviction Relief Act Petition; a timely appeal to the

Superior Court of Pennsylvania followed on May 23, 2019. The Superior Court

affirmed the trial court’s order on April 29, 2020, to which Powell’s appointed counsel

filed a timely Petition for Allowance of Appeal to the PA Supreme Court on May 27,

2020, which Petition was denied on September 23, 2020, and remitted on September

25, 2020.

Powell was advised by letter from his PCRA appointed counsel of the denial

and informed that his only other recourse was to seek federal relief in a habeas corpus

petition. Said counsel also informed that Powell had until September 23, 2021, to file

said habeas filing per counsel’s understanding of a one-year statute under 28 USC

2254. It should be noted that the state prison and federal courts were on lockdown

and shutdown mode during significant periods in 2020.

Powell sought private counsel through his father’s inquiries which he was able

to secure eventually in the last week of August 2021. Said counsels were not able to

directly converse with Powell until September 7, 2021, and then again on September

15, 2021, and did not receive the complete boxes of files until said date. In reviewing

the numerous documents and transcripts of a several week trial along with the

several state appeals and opinions, it was evident that Powell had diligently pursued

his appeal rights throughout the length of this case. And although there was a gap of

time between the denial of his underlying plea on April 3, 2018 (plus the 90 day

allowance for a certiorari, i.e. to July 3, 2018) and the PCRA filing on September 21,

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2018, consistent with the case of Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001), Powell

diligently pursued remedies throughout the state courts while then attempting to

pursue his federal remedy such that there is no abuse of the habeas system by any

long delay particularly given the Federal District Court’s shut down Orders closing

the court to all paper filings.

Powell filed his habeas corpus petition on September 23, 2021, with the District

Court and said matter was transferred to Magistrate Judge Carol Sandra Moore

Wells for review. Judge Wells issued her “Report and Recommendation” on March 30,

2022, to which Petitioner filed timely objections. On August 11, 2022, United States

District Judge Gerald Austin McHugh “Approved and Adopted” the “Report and

Recommendation” and did not issue a Certificate of Appealability necessitating this

Application for Certificate of Appealability.

IX.

REASONS FOR GRANTING WRIT

I. EQUITABLE TOLLING

The Third Circuit found that Appellant had filed 80 days beyond the AEDPA

statutory deadline and in its January 27, 2023, ORDER refused to find “equitable

tolling” which Appellant argues is an error of the interpretation of the Federal

District Court’s “Standing Orders”. Third Circuit has stated that “...Powell has not

shown how the District Court’s COVID-19 standing order prevented him from filing

a timely petition after that order expired. See Ross v. Varano, 712 F.3d 784, 803 (3d

Cir. 2013)”. Said Court is failing to “exclude” the time period that the District Court’s

COVID-19 standing orders explicitly says should be “excluded” from such calculation.

Every case cited by the Third Circuit in its most recent ORDER involves time periods

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when the Courts were open for business and available to the respective

Petitioner/Defendant. In fact, there are no cases that this Court can cite to where

“equitable tolling” was denied when the entire District Court system, by its own

ORDER, was closed for business.

As the “Standing Orders” from the District Court attached to Appellant’s

application for appealability so indicate, the COVID-19 pandemic was so pervasive

that the entire operation of the Federal District Court was shut down. Importantly,

several other “timeliness” statutes were, by order, extended at the request of the

Prosecution involving the “exclusion” of those same time periods involved in the

Covid-19 closures.

As an example, in the “SEVENTH EXTENSION OF ADJUSTMENTS TO

COURT OPERATIONS DUE TO THE EXIGENT CIRCUMSTANCES CREATED BY

COVID-19”, the District Court stated:

“...Accordingly, the additional time period from November 2,

2020, through January 15, 2021, shall be excluded (emphasis

added) under the Speedy Trial Act, 18 U.S.C. 3161(h)(7)(A), for all

criminal cases impacted by this trial continuance. This period of

exclusion is in addition to the period of exclusion previously

granted for the time period from March 13, 2020, through

December 31, 2020.”

Thus, the court “excluded” court closure time and therefore lengthened the time

period in which a defendant could be prosecuted.

Should a defendant file a motion for dismissal pursuant to a violation of his

constitutional right to a speedy trial, the court’s ORDER would excuse the time under

this COVID-19 shut down in favor of the Prosecution and against the Defendant. For

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each STANDING COVID-19 ORDER submitted by the Appellant herein, there is

“exclusion” of time which favors the Prosecution.

What this Court has chosen to do is apply case law that was previously created

at a time when there was no COVID-19 shutdown resulting in improper denying of

Appellant’s access to be heard. Under this Court’s analysis, even if the COVID-19

STANDING ORDERS were lifted 2 days before the one-year statute of limitations

ran and Appellant failed to file, he would be shut out and his habeas would be denied

for untimeliness by citing the Ross case at 803.

A court shut down of this magnitude has never occurred such that for the Court

to hold an appellant to the standards as explained in Holland v Florida, 560 U.S. 631

(2010), which involved a time when the court system was open and available is not

“justice for all”. As discussed in Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir.2003),

equitable tolling is available when the principle of equity would make the rigid

application of a limitation period unfair.

In Appellant’s case, the failure to exclude those 115 days (September 23, 2020,

through January 15, 2021) while the COVID-19 STANDING ORDERS were in effect,

and thereby include such time while the filing Court’s own Orders say otherwise, goes

against those very principles of equity the Third Circuit Court spoke of in Merritt.

Furthermore, what the Third Circuit Court is essentially doing is creating a de

facto amendment of the 2254 statute by setting aside the time period explicitly

granted by Congress therein.

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The one-year AEDPA statute under 2254 grants a petitioner 365 days to file;

what the Third Circuit’s ruling does is reduce this Appellant’s time by 115 days by

failing to exclude the COVID-19 shutdown period which prevented any filing by

Appellant.

Even under 28 U.S.C. 2244(d)(1)(B) an “impediment” to filing an application

created by state action qualifies for statutory tolling and thus extends the time to file

while the impediment exists.

Appellant’s case herein involves an impediment by the District Court (closure

of the court within the state where Appellant would have to file) to filing an

application. The Third Circuit Court’s decision, however, fails to exclude such time

and extend Appellant’s time for filing, thus giving Appellant, contrary to 2254’s

mandate, only 250 days to file his habeas petition.

Fundamental fairness is the bedrock of our judicial system and would be sorely

lacking in this case if the court does not exclude the time period when the courts were

closed.

Simply put, the Prosecution gets to have the benefit of additional time, but the

defendants do not.

The totality of the Petitioner’s circumstances demands that equitable tolling

be applied. Petitioner was incarcerated in a state prison which was shut down during

the heights of the Covid-19 pandemic. Petitioner could not have visits including from

any attorneys; could not have filed any papers with any courts as shutdowns included

any outside contact. The Federal District Court had ordered a shutdown of all

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operations. The Petitioner’s extraordinary circumstances were beyond his control.

Monroe v. United States, No. 4:17-cp-11, 2020 WL 6547646, (E.D.V.A. Nov. 6, 2020).

Likewise in Maury v. Davis, No.2:12 cv-1043, 2020 WL 5088738, (E.D. Cal.,

Aug. 28, 2020) tolling was allowed for time lost during shutdowns.

COVID was a “shutdown” of colossal proportions. This circumstance is the

type of extraordinary circumstance that warrants equitable tolling. Monroe.

The Court should grant this Writ as there are conflicts in various circuits

regarding whether the Covid-19 pandemic and shutdowns therefrom warrant

equitable tolling to be applicable for the period of the shutdowns. This Court is in a

unique position to settle the conflict among the districts.

CONCLUSION

The Court should grant this Writ as there are conflicts in various circuits

regarding whether the Covid-19 pandemic and shutdowns therefrom warrant

equitable tolling to be applicable for the period of the shutdowns. This Court is in a

unique position to settle the conflict among the districts.

Respectfully submitted,

/s/ Nicholas J. Casamento

Nicholas Casamento, Esquire

4 West Front Street

Media, PA 19063

Phone: (610) 565-5050

Fax: (610) 565-2980

Email: candrlawfirm@gmail.com

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APPENDIX

TABLE OF CONTENTS

ORDER 3-29-2023 DENYING REHEARING

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO: 22-2681

2..

ORDER 1-27-2023 DENYING CERTIFICATE OF APPEALABILITY

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO 22-2681

ORDER 3-30-2022 DENYING HABEAS CORPUS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA; NO 2021-CV-5214

REPORT AND RECOMMENDATION 3-30-2022 DENYING HABEAS

CORPUS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA; NO 2021-CV-5214

STANDNG ORDER 8-31-2020 IN RE: FIFTH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

STANDNG ORDER 9-24-2020 IN RE: VIDEO TELECONFERENCING AND

TELEPHONE CONFERENCING FOR CRIMINAL PROCEEDINGS UNDER

THE CARES ACT – SECOND EXTENSION

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

STANDNG ORDER 10-5-2020 IN RE: CONDUCTING ARBITRATION

HEARING BY VIDEOCONFERNCE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

STANDNG ORDER 10-30-2020 IN RE: SIXTH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

STANDNG ORDER 11-25-2020 IN RE: SEVENTH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

10.

STANDNG ORDER 12-21-2020 IN RE: VIDEO TELECONFERNCING AND

TELEPHONE CONFERENCING FOR CRIMINAL PROCEEDINGS UNDER

THE CARES ACT – THIRD EXTENSION

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

11.

STANDNG ORDER 1-15-2021 IN RE: EIGHTH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

12.

STANDNG ORDER 2-21-2021 IN RE: NINETH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

13.

STANDNG ORDER 3-19-2021 IN RE: TENTH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

14.

STANDNG ORDER 3-30-2021 IN RE: ELEVENTH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

APPENDIX 1

ORDER 3-29-2023 DENYING REHEARING

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO: 22-2681

Case: 22-2681

Document: 16

Page: 1

Date Filed: 03/29/2023

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 22-2681

BREON POWELL,

Appellant

SUPERINTENDENT HUNTINGDON SCI, et al.

(D.C. Civ. No.: 2-21-cv-05214)

________________

SUR PETITION FOR REHEARING

Present: CHAGARES, Chief Judge, JORDAN, HARDIMAN, GREENAWAY, JR.,

SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, and

FREEMAN, Circuit Judges.

The petition for rehearing filed by appellant in the above-entitled case having been

submitted to the judges who participated in the decision of this Court and to all the other

available circuit judges of the circuit in regular active service, and no judge who concurred

in the decision having asked for rehearing, and a majority of the judges of the circuit in

regular service not having voted for rehearing, the petition for rehearing by the panel and

the Court en banc, is denied.

BY THE COURT,

Dated: March 29, 2023

kr/cc: All Counsel of Record

s/ Thomas M. Hardiman

Circuit Judge

APPENDIX 2

ORDER 1-27-2023 DENYING CERTIFICATE OF APPEALIBILTY

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO: 22-2681

Case: 22-2681

Document: 14-1

Page: 1

Date Filed: 01/27/2023

ALD-059

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 22-2681

BREON POWELL, Appellant

VS.

SUPERINTENDENT HUNTINGDON SCI, ET AL

(E.D. Pa. Civ. No. 2:21-cv-05214)

Present:

HARDIMAN, RESTREPO, and BIBAS, Circuit Judges

Submitted are:

(1) Appellant’s motion for a certificate of appealability under 28 U.S.C.

§ 2253(c)(1); and

(2) Appellees’ response in opposition to the issuance of a certificate of

appealability

in the above-captioned case.

Respectfully,

Clerk

________________________________ORDER_________________________________

The foregoing request for a certificate of appealability is denied because

reasonable jurists would not debate the District Court’s conclusion that Powell’s 28

U.S.C. § 2254 habeas petition is barred by the one-year statute of limitations. See 28

U.S.C. § 2244(d)(1); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Powell has not made

a substantial showing that his petition would be rendered timely through the application

of statutory tolling, see § 2244(d)(2), or equitable tolling, see Holland v. Florida, 560

U.S. 631, 649 (2010). Notably, Powell has not shown how the District Court’s COVID19 standing order prevented him from filing a timely petition after that order expired.

See Ross v. Varano, 712 F.3d 784, 803 (3d Cir. 2013) (explaining that, in the context of

equitably tolling the time to file a habeas petition, a petitioner must show “a causal

1 of 4

Case: 22-2681

Document: 14-1

Page: 2

Date Filed: 01/27/2023

connection, or nexus, between the extraordinary circumstances he faced and the

petitioner’s failure to file a timely federal petition”). Further, Powell’s Fourth

Amendment claim is noncognizable on federal habeas review. See Stone v. Powell, 428

U.S. 465, 494 (1976).

By the Court,

s/ Thomas M. Hardiman

Circuit Judge

Dated: January 27, 2023

PDB/KR/cc: All Counsel of Record

A True Copy:

Patricia S. Dodszuweit, Clerk

Certified Order Issued in Lieu of Mandate

2 of 4

Case: 22-2681

PATRICIA S. DODSZUWEIT

CLERK

Document: 14-2

Page: 1

Date Filed: 01/27/2023

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

21400 UNITED STATES COURTHOUSE

601 MARKET STREET

PHILADELPHIA, PA 19106-1790

TELEPHONE

215-597-2995

Website: www.ca3.uscourts.gov

January 27, 2023

Eric R. Alkon

Bucks County Office of District Attorney

Bucks County Justice Center

100 North Main Street

Doylestown, PA 18901

Nicholas Casamento

Casamento & Ratasiewicz

4 West Front Street

Suite 6050

Media, PA 19063

Ronald Eisenberg

Office of Attorney General of Pennsylvania

1600 Arch Street

Suite 300

Philadelphia, PA 19103

Joseph A. Ratasiewicz

Casamento & Ratasiewicz

4 West Front Street

Suite 6050

Media, PA 19063

RE: Breon Powell v. Superintendent Huntingdon SCI, et al

Case Number: 22-2681

District Court Case Number: 2-21-cv-05214

ENTRY OF JUDGMENT

Today, January 27, 2023 the Court issued a case dispositive order in the above-captioned matter

which serves as this Court's judgment. Fed. R. App. P. 36.

3 of 4

Case: 22-2681

Document: 14-2

Page: 2

Date Filed: 01/27/2023

If you wish to seek review of the Court's decision, you may file a petition for rehearing. The

procedures for filing a petition for rehearing are set forth in Fed. R. App. P. 35 and 40, 3rd Cir.

LAR 35 and 40, and summarized below.

Time for Filing:

14 days after entry of judgment.

45 days after entry of judgment in a civil case if the United States is a party.

Form Limits:

3900 words if produced by a computer, with a certificate of compliance pursuant to Fed. R. App.

P. 32(g).

15 pages if hand or type written.

Attachments:

A copy of the panel's opinion and judgment only.

Certificate of service.

Certificate of compliance if petition is produced by a computer.

No other attachments are permitted without first obtaining leave from the Court.

Unless the petition specifies that the petition seeks only panel rehearing, the petition will be

construed as requesting both panel and en banc rehearing. Pursuant to Fed. R. App. P. 35(b)(3),

if separate petitions for panel rehearing and rehearing en banc are submitted, they will be treated

as a single document and will be subject to the form limits as set forth in Fed. R. App. P.

35(b)(2). If only panel rehearing is sought, the Court's rules do not provide for the subsequent

filing of a petition for rehearing en banc in the event that the petition seeking only panel

rehearing is denied.

Please consult the Rules of the Supreme Court of the United States regarding the timing and

requirements for filing a petition for writ of certiorari.

For the Court,

s/ Patricia S. Dodszuweit,

Clerk

cc:

Mr. George V. Wylesol

4 of 4

APPENDIX 3

ORDER 3-30-2022 DENYING HABEAS CORPUS

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NO: 2021-CV-5214

Case 2:21-cv-05214-GAM Document 19-1 Filed 03/30/22 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BREON POWELL

DUANE BLACK, et al.

CIVIL ACTION

NO. 21-5214

ORDER

AND NOW, this

day of

, 2022, upon consideration of the

Petition for Writ of Habeas Corpus, the Commonwealth’s Answer, the Petitioner’s Response to

the Answer, the other documents filed by the parties, and after review of the Report and

Recommendation of United States Magistrate Judge Carol Sandra Moore Wells, is hereby

ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;

2. The Petition for a Writ of Habeas Corpus is DISMISSED, without an evidentiary

hearing; and

3. Petitioner has neither shown denial of a federal constitutional right, nor established

that reasonable jurists would disagree with this court’s procedural disposition of his

claims. Consequently, a certificate of appealability is DENIED.

IT IS SO ORDERED.

BY THE COURT:

Gerald A. McHugh, J.

APPENDIX 4

ORDER 3-30-2022

REPORT AND RECOMMENDATION DENYING HABEAS CORPUS

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NO 2021-CV-5214

Case 2:21-cv-05214-GAM Document 19 Filed 03/30/22 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BREON POWELL

DUANE BLACK, et al.

CIVIL ACTION

NO. 21-5214

REPORT AND RECOMMENDATION

CAROL SANDRA MOORE WELLS

UNITED STATES MAGISTRATE JUDGE

March 30, 2022

Presently before the court is a counseled Petition for a Writ of Habeas Corpus filed by

Breon Powell (“Petitioner”), pursuant to 28 U.S.C. § 2254. Petitioner, a state prisoner, is currently

serving a life term of incarceration at the State Correctional Institution-Hunterdon. He seeks

habeas relief based on claims of due process and Fourth Amendment violations, as well as

ineffective assistance of counsel. The Honorable Gerald A. McHugh referred this matter to the

undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. §

636(b)(1)(B). For the reasons set forth below, it is recommended that the habeas petition be

dismissed, without an evidentiary hearing.

FACTUAL AND PROCEDURAL HISTORY 1

On October 7, 2013, Petitioner was convicted, in the Court of Common Pleas for Bucks

County, of first degree murder, robbery, conspiracy to commit robbery and possession of an

instrument of crime. Am. Pet. at ¶ 1. Petitioner then filed post-sentence motions and a notice of

appeal. Id., at ¶ 8. The Pennsylvania Superior Court affirmed the judgment of sentence, on

September 25, 2017. Id., at ¶ 9. The Pennsylvania Supreme Court denied allowance of appeal, on

April 3, 2018. Id., at ¶ 10. Petitioner did not seek certiorari in the U.S. Supreme Court.

The facts set forth in this background and procedural history were gleaned from Petitioner’s Habeas Corpus Petition,

his attached Amended Petition, the Commonwealth’s Answer thereto, and Petitioner’s Response to that Answer.

Case 2:21-cv-05214-GAM Document 19 Filed 03/30/22 Page 2 of 7

On September 21, 2018, Petitioner’s Post Conviction Relief Act (“PCRA”) petition was

filed. Am. Pet. at ¶ 11. Appointed counsel filed an amended petition, on March 29, 2019. Id., at

¶ 12. The PCRA court denied relief and Petitioner appealed. Id., at ¶ 13. The Superior Court

affirmed the denial of PCRA relief, on April 29, 2020. Id. The Pennsylvania Supreme Court

denied allowance of appeal, on September 23, 2020. Id. Petitioner did not seek certiorari in the

U.S. Supreme Court.

On September 23, 2021, Petitioner’s attorneys filed his habeas petition in the U.S. District

Court for the Middle District of Pennsylvania. That court transferred the case to this district court

and, on December 9, 2021, Petitioner was ordered to use the form of petition used in this district

court. Petitioner did so, on January 10, 2022, claiming: (1) the trial court violated Petitioner’s due

process rights when it reversed its pre-trial decision to preclude prejudicial testimony about a prior,

uncharged, alleged robbery; (2) the trial court violated the Fourth Amendment when it allowed the

prosecution to admit evidence seized from Petitioner’s cell phone without a warrant. Am. Pet. at

¶¶ 31, 33. Petitioner also claims that trial counsel rendered ineffective assistance by: (3) causing

the trial court to admit evidence concerning a prior robbery involving witness Henderson, as a

result of counsel’s cross-examination of Henderson; (4) failing to call three alibi witnesses that

Petitioner had identified and were available at trial; (5) failing to inform Petitioner that – during

the trial – the trial judge revealed to all attorneys that her daughter was being prosecuted by the

Bucks County District Attorney’s office; and (6) failing to inform Petitioner that co-trial counsel

was also being prosecuted by the Bucks County District Attorney’s office for a DUI charge. Am.

Pet. at ¶¶ 34-35, 37, 38, 40. The Commonwealth argues, inter alia, that all of Petitioner’s claims

are time-barred. Answer at 8-12. The Commonwealth also argues that Petitioner’s first claim is

not cognizable and his Fourth Amendment claim is barred by Stone v. Powell, 428 U.S. 465 (1976).

Case 2:21-cv-05214-GAM Document 19 Filed 03/30/22 Page 3 of 7

Answer at 12-15. This court finds that claim two, Petitioner’s Fourth Amendment claim, is barred

by Stone and that his other claims are time-barred.

II.

DISCUSSION

Claim Two is Barred by Stone v. Powell

Claim two asserts that Petitioner’s Fourth Amendment rights were violated because the

Commonwealth was allowed to introduce at trial evidence obtained from a warrantless search of

his cellphone. Am. Pet. at ¶ 33. Petitioner asserts that this evidence was also used to obtain a

wiretap, which yielded evidence used against him at trial. Id. The Commonwealth counters,

correctly, that this claim is barred by Stone v. Powell. Answer at 14, 15.

In Stone, the Supreme Court held that federal habeas relief cannot be granted based upon

a Fourth Amendment claim, if the petitioner had the opportunity to litigate his Fourth Amendment

claim in state court. 428 U.S. at 494. This bar to habeas relief is applicable so long as there is no

structural defect in the state court that would have prevented consideration of the petitioner’s

Fourth Amendment claim. Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002).

Herein, Petitioner challenged the wiretaps that, he alleges, were obtained after a warrantless

search of his cell phone. Commonwealth v. Powell, 171 A.3d 294, 310-14 (Pa. Super. Ct. 2017).

Petitioner did not challenge the Fourth Amendment violation that led to the wiretaps being issued.

Id. However, it is clear that no structural defect in the state court prevented consideration of

Petitioner’s Fourth Amendment claim. Therefore, that claim is now barred by Stone v. Powell.

See Marshall, 307 F.3d at 82.

The AEDPA Statute of Limitations

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), enacted on April

24, 1996, imposes a one year period of limitations (“AEDPA year”) for habeas corpus petitions.

Case 2:21-cv-05214-GAM Document 19 Filed 03/30/22 Page 4 of 7

The time period (the “AEDPA year”) begins to run from the latest of the following:

(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;

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

could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). The Third Circuit has held that the starting date for the habeas

period of limitations must be determined separately for each cognizable claim contained in the

petition. See Fiedler v. Varner, 379 F.3d 113, 117-18 (3d Cir. 2004).

Petitioner did not seek certiorari after the Pennsylvania Supreme Court denied allowance

of appeal, on April 3, 2018. Consequently, his conviction became final 90 days later, on July 2,

2018. See Sup. Ct. R. 13(1); 28 U.S.C. § 2244(d)(1)(A). This is the appropriate starting date for

all of his remaining claims. 2 His AEDPA year expired one year later, on July 2, 2019. Unless

grounds for statutory or equitable tolling can be demonstrated, Petitioner’s claims are untimely

and must be dismissed.

Statutory and Equitable Tolling

Statutory Tolling

Statutory tolling provisions provide that, “[t]he time that a properly filed application for

In his response to the Answer, Petitioner does not argue that a different starting date should apply to any of his

claims. See Pet’r Resp. at 1-4.

Case 2:21-cv-05214-GAM Document 19 Filed 03/30/22 Page 5 of 7

state post-conviction or other collateral relief with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of limitation under this section.” 28 U.S.C. §

2244(d)(2). A properly filed application for state collateral relief is one submitted in compliance

with the applicable rules governing filings such as the form of the document, the time limits on

filing, the court and office in which it must be filed and the requisite filing fees. 3 Artuz v. Bennett,

531 U.S. 4, 8 (2000). Answering a question left open in Artuz, the U.S. Supreme Court later

explained that, despite enumerated exceptions to the timely filing requirement, an untimely PCRA

petition is not “properly filed” and cannot statutorily toll the federal habeas period of limitations.

Pace v. DiGuglielmo, 544 U.S. 408, 413-17 (2005).

Petitioner filed his PCRA petition on September 21, 2018. Am Pet. at ¶ 11. By that date,

82 days of his AEDPA year had expired, leaving 283. Statutory tolling ceased on September 23,

2020, when the Pennsylvania Supreme Court denied allowance of appeal. Lawrence v. Florida,

549 U.S. 327, 332 (2007). Petitioner’s AEDPA year began to run again and it expired 283 days

later, on July 6, 2021. 4 Petitioner did not file his habeas petition until September 23, 2021,

meaning it was 80 days too late. Nevertheless, Petitioner may be eligible for equitable tolling.

Equitable Tolling

Equitable tolling is available “only when the principle of equity would make the rigid

application of a limitation period unfair.” Merritt v. Blaine, 326 F.3332d 157, 168 (3d Cir. 2003)

(internal quotations omitted). Courts should apply this doctrine sparingly. LaCava v. Kyler, 398

F.3d 271, 275 (3d Cir. 2005). The general requirements for equitable tolling are: (1) the petitioner

exercised diligence in pursuing his rights, and (2) extraordinary circumstances prevented timely

The U.S. Supreme Court initially declined to decide whether the existence of exceptions to a timely filing requirement

can prevent a late application from being considered improperly filed. Artuz, 531 U.S. at 8 n.2.

The 283rd day fell on July 3, 2021, which was a Saturday. The July 4th federal holiday was observed on Monday,

July 5, 2021; hence, Petitioner’s AEDPA year expired on Tuesday, July 6, 2021.

Case 2:21-cv-05214-GAM Document 19 Filed 03/30/22 Page 6 of 7

filing. Holland v. Florida, 560 U.S. 631, 649 (2010). The petitioner bears the burden of proving

both requirements. Pace, 544 U.S. at 418; Urcinoli v. Cathel, 546 F.3d 269, 273 (3d Cir. 2008).

Petitioner asserts that he is entitled to equitable tolling. Pet’r Resp. at 1-4. Petitioner’s

initial assertions address his diligence, before filing his PCRA petition and while it was pending,

but do not address any extraordinary circumstances at that time. See id. at 1-3. The problem with

this argument is twofold: it addresses a time when statutory tolling was in effect and there is no

mention of extraordinary circumstances, both of which are required. Holland, 560 U.S. at 649.

Next, Petitioner argues that, for the period of time after the Pennsylvania Supreme Court denied

allowance of appeal, on September 23, 2020, until he filed his habeas petition, the conditions

caused by the COVID-19 pandemic should excuse his untimeliness. See Pet’r Reply at 3-4. While

the COVID-19 pandemic could be considered an extraordinary circumstance for purposes of

equitable tolling, that does not address Petitioner’s diligence. When the Pennsylvania Supreme

Court denied allowance of appeal, on September 23, 2020, Petitioner still had 283 days to timely

file a habeas petition. He does not explain why he did not file within that time or what effort he

made in that time period. In fact, it seems that Petitioner did not even consult with his current

attorneys until September 2021, see id. at 2, which was well after statutory tolling ended. Hence,

the court declines to find that Petitioner is entitled to equitable tolling. 5

III.

CONCLUSION

Petitioner’s second claim is barred by Stone v. Powell; his other claims are time-barred.

Reasonable jurists would not debate this court’s procedural disposition of his claim; therefore a

certificate of appealability should not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Accordingly, I make the following:

Petitioner has also failed to advance any new, reliable evidence of his actual innocence to avoid time-bar. See

McGuiggin v. Perkins, 569 U.S. 383, 386 (2013).

Case 2:21-cv-05214-GAM Document 19 Filed 03/30/22 Page 7 of 7

RECOMMENDATION

AND NOW, this 30th day of March, 2022, for the reasons contained in the preceding

Report, it is hereby RECOMMENDED that Petitioner’s claim be DISMISSED, without an

evidentiary hearing. Petitioner has neither demonstrated that any reasonable jurist could find this

court’s procedural rulings debatable, nor shown denial of any federal constitutional right; hence,

there is no probable cause to issue a certificate of appealability.

Petitioner may file objections to this Report and Recommendation within fourteen (14)

days of being served with a copy of it. See Local R. Civ. P. 72.1(IV). Failure to file timely

objections may constitute a waiver of any appellate rights.

It be so ORDERED.

/s/ Carol Sandra Moore Wells

CAROL SANDRA MOORE WELLS

United States Magistrate Judge

APPENDIX 5

STANDNG ORDER 8-31-2020 IN RE: FIFTH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE:

FIFTH EXTENSION OF

ADJUSTMENTS TO COURT

OPERATIONS DUE TO THE

EXIGENT CIRCUMSTANCES

CREATED BY COVID-19

STANDING ORDER

This Order is issued in furtherance of the Court’s prior Standing Orders issued on March

13, 2020, March 18, 2020, April 10, 2020, May 29, 2020, June 30, 2020, and July 31, 2020, which

implemented and extended certain adjustments to Court operations due to the exigent

circumstances created by the ongoing coronavirus disease 2019 (COVID-19) pandemic and in the

interest of public health and safety. This Order addresses civil and criminal jury selections and

jury trials, as well as grand jury selections, all of which were previously continued through August

31, 2020. It also addresses Central Violations Bureau proceedings, which were previously

continued pending further Court order.

The COVID-19 pandemic continues to significantly impact Court operations in this

district, as outlined in the Court’s prior Standing Orders. The national emergency declared by the

President under the National Emergencies Act, 50 U.S.C. § 1601 et seq., with respect to COVID19 remains ongoing. The finding by the Judicial Conference of the United States that emergency

conditions due to the COVID-19 national emergency have materially affected and will materially

affect the functioning of the federal courts generally also remains in effect.

Within the Commonwealth of Pennsylvania, the Governor has extended his declaration of

a disaster emergency due to the COVID-19 pandemic. There have been more than 137,000 cases

of COVID-19 in Pennsylvania to date, including more than 89,000 cases in this district. In the

past few months, the Commonwealth has undertaken a phased reopening pursuant to the

Governor’s Process to Reopen Pennsylvania. As part of this process, the stay-at-home orders

previously in place in the counties in this district have been lifted, and some of the other restrictions

previously in effect have been eased as the counties in this district have transitioned to the “yellow”

and “green” phases of the Governor’s plan. As the virus continues to circulate, however, many

restrictions remain, and new mitigation measures have been implemented. Even in the “green”

phase, masks or face coverings must be worn in public settings, six-foot physical distancing must

be maintained, and indoor gatherings of more than 25 persons are prohibited. Businesses are

required to conduct their operations through individual teleworking whenever possible and, if

conducting in-person operations, must comply with all applicable guidance issued by the

Governor, the Department of Health, and the Centers for Disease Control and Prevention (CDC).

In addition, individuals who travel to areas with a high number of COVID-19 cases are advised to

quarantine for 14 days upon their return to Pennsylvania.

The CDC and State and local public health authorities continue to emphasize the need for

precautions to avoid exposure to the virus and prevent its spread. Recommended precautions

include maintaining six feet of physical distance from others, wearing masks or face coverings in

public, limiting nonessential travel, avoiding public transportation when possible, working from

home, avoiding large gatherings, limiting the number and duration of in-person interactions, and

regularly cleaning and disinfecting frequently touched surfaces.

With the lifting of the stay-at-home orders in the counties in this district in June 2020, this

Court also began the process of reopening pursuant to the Federal Judiciary COVID-19 Recovery

Guidelines issued by the Administrative Office of the U.S. Courts. The Court is committed to

reopening gradually and cautiously to protect the health and safety of Court employees and all

those entering Court facilities and to mitigate the risk of a resurgence of new COVID-19 cases.

To that end, the Court has continued to carefully monitor the COVID-19 data for this district and

the available guidance from government officials and public health authorities to ensure that any

increases in on-site activity can be accomplished safely.

In the initial phase of reopening, the Court began bringing additional employees into the

courthouse on a rotating basis and resumed holding a limited number of essential in-person

proceedings in a limited number of designated courtrooms to ensure that the courtrooms in use

could be adequately cleaned and disinfected between proceedings. During this phase, criminal

proceedings and shorter proceedings with fewer participants have been prioritized.

The Court has also been carefully planning for the resumption of jury trials, which pose

additional challenges during the pandemic due to their longer duration and the large number of

people involved, including jurors who often must travel significant distances to participate. The

Court has been developing guidelines for the reinstitution of jury trials in this district with the goal

of allowing jury trials to proceed safely and in accordance with public health guidance. The

guidelines include a number of health and safety precautions, and trials conducted pursuant to the

guidelines will require more staff and space than would be required in ordinary circumstances.

For example, to limit the number of people in one room at a time and to ensure adequate space for

physical distancing, jury selection for each trial will require the use of four courtrooms as well as

the jury assembly room. Once a jury is selected, two courtrooms will be used for each trial, and

an additional courtroom will be used to allow the public to observe the proceedings. To limit the

number of jurors in the courthouse at one time and to ensure adequate staffing and the availability

of sufficient space for jury selection and trial, only one trial will be conducted at a time, at least

initially. Thus, while the Court anticipates that jury trials may resume on a limited basis in mid-

September, due to the health and safety considerations outlined above, it will be possible to

convene only a small number of jury trials in September and October.

As jury trials resume on this limited basis, criminal cases will be prioritized. The Court

has worked with representatives of the U.S. Attorney’s Office and the Federal Community

Defender Office in this district to identify those cases that are ready to proceed to trial and to

prioritize the cases suitable to proceed in the initial round of jury trials. All other trials will be

continued in the interest of health and safety due to the ongoing public health emergency and its

impact on Court operations. It is therefore ORDERED as follows:

All civil jury selections and jury trials scheduled to begin before November 2, 2020,

before any district or magistrate judge in any courthouse or Court location in this district are

CONTINUED pending further Court order.

With the exception of the limited number of cases designated for trial in September

or October pursuant to the procedure described above, all criminal jury selections and jury trials

scheduled to begin before November 2, 2020, before any district or magistrate judge in any

courthouse or Court location in this district are CONTINUED pending further Court order.

All jury selections and jury trials impacted by this Standing Order will be

rescheduled by the presiding judge. Aside from ordering a jury trial, individual judges presiding

over criminal proceedings may take such actions consistent with this Standing Order as may be

lawful and appropriate to ensure the fairness of the proceedings and preserve the rights of the

parties.

With respect to criminal trials continued by this Standing Order, the Court is

cognizant of the right of criminal defendants to a speedy and public trial under the Sixth

Amendment and the particular application of that right in cases involving defendants who are

detained pending trial. In light of the circumstances regarding the COVID-19 pandemic and its

impact on Court operations outlined above and in the Court’s prior Standing Orders, the Court

finds the ends of justice served by granting a continuance outweigh the best interest of the public

and each defendant in a speedy trial. For trials continued by this Standing Order, given the current

circumstances regarding COVID-19 in this district and the precautions necessary to protect health

and safety during a jury trial, failure to postpone these jury trials through November 2, 2020, would

be likely to make the continuation of such trials impossible or result in a miscarriage of justice.

Accordingly, the additional time period from August 31, 2020, through November 2, 2020, shall

be excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), for all criminal cases impacted

by this trial continuance. This period of exclusion is in addition to the period of exclusion

previously granted for the time period from March 13, 2020, through August 31, 2020. The Court

may extend the period of exclusion by further order as circumstances may warrant, and the

presiding judge in any criminal case for which trial is continued under this Standing Order may

make any additional findings and exclude additional time, as necessary and appropriate, regarding

the scheduling of any new date for trial. Any motion by a criminal defendant seeking an exception

to this Standing Order for the purpose of exercising the defendant’s speedy trial rights shall be

referred to the Chief Judge.

Grand jury selections may resume in September 2020, if conditions allow and with

appropriate health and safety precautions in place. Because grand jury selections will involve the

same precautions as petit jury selections, grand jury selections will not be held on days when petit

jury selections are occurring.

Central Violations Bureau proceedings may resume in September 2020, if

conditions allow and with appropriate health and safety precautions in place.

Except as modified herein, the May 29, 2020, June 30, 2020, and July 31, 2020, Standing

Orders remain in effect.

IT IS SO ORDERED.

/s/ Juan R. Sánchez

Juan R. Sánchez

Chief Judge

Date: August 31, 2020

APPENDIX 6

STANDNG ORDER 9-24-2020 IN RE: VIDEO TELECONFERENCING

AND TELEPHONE CONFERENCING FOR CRIMINAL PROCEEDINGS

UNDER THE CARES ACT – SECOND EXTENSION

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE:

VIDEO TELECONFERENCING AND

TELEPHONE CONFERENCING FOR

CRIMINAL PROCEEDINGS UNDER

THE CARES ACT – SECOND

EXTENSION

STANDING ORDER

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act

was enacted, authorizing the use of video teleconferencing and telephone conferencing, under

certain circumstances and with the consent of the defendant, for various criminal case events

during the course of the COVID-19 national emergency. See Pub. L. No. 116-136, § 15002, 134

Stat. 281, 527-30 (2020). On March 29, 2020, the Judicial Conference of the United States found,

pursuant to the CARES Act, that emergency conditions due to the national emergency declared by

the President with respect to COVID-19 have materially affected and will materially affect the

functioning of the federal courts generally.

On March 30, 2020, the undersigned, as Chief Judge and pursuant to the authority granted

by the CARES Act to chief judges of district courts covered by the Judicial Conference’s finding,

issued a Standing Order finding that emergency conditions due to the COVID-19 national

emergency were continuing to materially affect the functioning of this district and authorizing the

use of video teleconferencing, or telephone conferencing if video teleconferencing is not

reasonably available, with the consent of the defendant after consultation with counsel, for all of

the criminal case events listed in Section 15002(b) of the CARES Act. The Order also included a

finding that felony pleas under Rule 11 of the Federal Rules of Criminal Procedure and felony

sentencings under Rule 32 of the Federal Rules of Criminal Procedure could not be conducted in

person in this district without seriously jeopardizing public health and safety. Based on this

finding, the Order provided that, if a district judge in an individual case found, for specific reasons,

that a felony plea or sentencing in that case could not be further delayed without serious harm to

the interests of justice, the judge could, with the consent of the defendant after consultation with

counsel, use video teleconferencing, or telephone conferencing, if video teleconferencing was not

reasonably available, for the felony plea or sentencing in that case.

On June 26, 2020, pursuant to Section 15002(b)(3) of the CARES Act, I reviewed the

foregoing authorization and issued a Standing Order extending the authorization for an additional

90 days. The June 26 Order provided that the authorization would remain in effect for 90 days,

until September 24, 2020, unless terminated earlier, and that if emergency conditions continued to

exist 90 days from the date of the Order, I would again review the authorization and determine

whether to extend it.

As of this date, the President’s national emergency declaration has not been terminated,

and the Judicial Conference’s finding that emergency conditions due to the COVID-19 national

emergency have materially affected and will materially affect the functioning of the federal courts

generally remains in effect.

Emergency conditions also continue to materially affect the

functioning of this district, as described in the Standing Orders currently in effect in this district

due to the COVID-19 pandemic. I further find that many felony pleas under Rule 11 of the Federal

Rules of Criminal Procedure and felony sentencings under Rule 32 of the Federal Rules of

Criminal Procedure still cannot be conducted in person in this district without seriously

jeopardizing public health and safety. While the Court has resumed holding some essential inperson proceedings, including some felony pleas and sentencings, the Court is continuing to use

video teleconferencing and telephone conferencing for court proceedings to the greatest extent

possible to protect the health and safety of all case participants, including judges, court staff,

attorneys, and parties, especially those at increased risk of serious illness from COVID-19. Health

and safety considerations also limit the number and type of in-person proceedings that can be

safely conducted at this time. For health and safety reasons, in-person proceedings may be held

in only a small number of designated courtrooms, limiting the number of proceedings that may be

held each week. In-person proceedings may also pose particular safety concerns for those at

increased risk of serious illness from COVID-19. Given the size of the Court and the substantial

limitations on the Court’s ability to conduct in-person proceedings at this time, the use of video

teleconferencing and telephone conferencing remains necessary for criminal case events in this

district, including felony pleas and felony sentencings.

Accordingly, upon review of the authorization of video teleconferencing and telephone

conferencing for criminal case events set forth in the March 30 Standing Order and extended by

the June 26 Standing Order, as required under Section 15002(b)(3) of the CARES Act, it is

ORDERED the authorization is extended for an additional 90 days from the date of this Order,

unless terminated earlier. Specifically, with the consent of the defendant or juvenile after

consultation with counsel, video teleconferencing, or telephone conferencing if video

teleconferencing is not reasonably available, is authorized to be used for all criminal case events

listed in Section 15002(b) of the CARES Act. In addition, if a district judge in an individual case

finds, for specific reasons, that a felony plea or sentencing in that case cannot be further delayed

without serious harm to the interests of justice, the judge may, with the consent of the defendant

after consultation with counsel, use video teleconferencing, or telephone conferencing if video

teleconferencing is not reasonably available, for the felony plea or sentencing in that case. Judges

may also use this authority for equivalent events in juvenile cases as described in Section

15002(b)(2)(B).

If emergency conditions continue to exist 90 days from the date of this Order, I will again

review this authorization and determine whether to further extend it.

/s/ Juan R. Sánchez

Juan R. Sánchez

Chief Judge

Date: September 24, 2020

APPENDIX 7

STANDNG ORDER 10-5-2020 IN RE: CONDUCTING ARBITRATION

HEARING BY VIDEOCONFERNCE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE:

CONDUCTING ARBITRATION

HEARINGS BY

VIDEOCONFERENCE

STANDING ORDER

In light of the exigent circumstances created by the ongoing coronavirus disease 2019

(COVID-19) pandemic and in the interest of public health and safety, as well as in keeping with

the Court’s Standing Orders issued on March 18, 2020, April 10, 2020, May 29, 2020, and June

30, 2020, which implemented and extended certain adjustments to Court operations, including the

continuance of all arbitration hearings pursuant to Local Civil Rule 53.2, the Court issues the

following Standing Order, effective immediately:

1. The requirement set forth in Local Civil Rule 53.2, subsection 5A, stating that an

arbitration trial shall take place in the United States Courthouse, is suspended in order

to allow arbitration trials to be conducted remotely by videoconference.

This

suspension is necessary because conducting arbitration trials remotely by

videoconference eliminates the need for in-person gatherings, which would normally

include arbitrators, parties, counsel, witnesses, and Court staff, and minimizes the need

for travel, especially by public conveyance, by any participant. Arbitration trials which

would otherwise be continued for an unknown duration due to the reduced number of

available courtrooms, which must be reserved for specific categories of trials and other

hearings, may now proceed by videoconference and parties may obtain resolution in

their cases.

2. Suspension of subsection 5A is only for the purpose of allowing arbitration trials to be

conducted remotely by videoconference. Arbitration trials may not be physically held

in any alternative locations. As would be the case if the arbitration trials were held in

the United States Courthouse, no person who has not been hired by a party to perform

transcription services may record the video or audio of the arbitration trial, and failure

to comply with this prohibition may result in the imposition of sanctions.

3. Parties must either consent or decline to have the arbitration trial conducted remotely

by videoconference by completing and electronically filing a Consent/Declination of

Consent form that will be docketed in each case awaiting an arbitration trial.

Arbitration trials for parties who consent to proceed by videoconference will be

scheduled upon receipt of the completed form on a rolling basis. Parties who do not

consent to the arbitration trial being conducted remotely by videoconference remain

subject to the continuance of arbitration hearings set forth in the Court’s June 30, 2020

Standing Order.

4. The requirement set forth in Local Rule 53.2, subsection 4D, that the arbitration clerk

provide the arbitrators with a copy of all pleadings, the court order referring the case to

arbitration and designating the arbitrators, and guidelines for the arbitrators at the time

the court order is entered, is suspended. Instead, no later than the next business day

following the entry of the court’s order setting forth the date of the arbitration trial and

the names of the arbitrators assigned to the arbitration panel, the parties must send the

arbitration clerk an email with a copy of the docket sheet and all relevant pleadings, in

the form in which they appear on CM/ECF, as attachments. The arbitration clerk will

then forward the documents to the arbitrators by email, along with a copy of the court’s

order, the Guidelines for Participating in Arbitration Trials Conducted by

Videoconference, and the Standing Procedural Order for Arbitration Trials Conducted

by Videoconference.

5. The requirement set forth in Local Rule 53.2, subsection 6, that the arbitration award

be filed with the court, is suspended and the arbitration chair should instead email the

arbitration award to paed_arbitration@paed.uscourts.gov to facilitate entry of the

award onto the docket.

6. Counsel, parties, and the members of the arbitration panel are required to review and

comply with the Standing Procedural Order for Arbitration Trials Conducted by

Videoconference as well as the Guidelines for Participating in Arbitration Trials

Conducted by Videoconference. These documents are available on the court website

at www.paed.uscourts.gov/services/arbitration and will be provided to the parties and

the arbitrators as described above.

7. Except as modified herein with respect to arbitration hearings, the June 30, 2020

Standing Order remains in effect.

/s/ Juan R. Sánchez

Juan R. Sánchez

Chief Judge

Date: October 5, 2020

APPENDIX 8

STANDNG ORDER 10-30-2020 IN RE: SIXTH ADJUSTMENT TO THE

COURT OPERATIONS DUE TO THE EXTIGENT CIRCUMSTANCES

CREATED BY COVID-19

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE:

SIXTH EXTENSION OF

ADJUSTMENTS TO COURT

OPERATIONS DUE TO THE

EXIGENT CIRCUMSTANCES

CREATED BY COVID-19

STANDING ORDER

This Standing Order is issued in furtherance of the Court’s prior Standing Orders issued

on March 13, 2020, March 18, 2020, April 10, 2020, May 29, 2020, June 30, 2020, July 31, 2020,

August 31, 2020, and October 5, 2020, which implemented and extended certain adjustments to

Court operations due to the exigent circumstances created by the ongoing coronavirus disease 2019

(COVID-19) pandemic and in the interest of public health and safety. This Standing Order

addresses civil and criminal jury selections and jury trials, which were previously continued

through November 2, 2020, with limited exceptions.

The COVID-19 pandemic continues to significantly impact Court operations in this

district, as outlined in the Court’s prior Standing Orders. Since the August 31, 2020, Standing

Order was issued, the number of cases of COVID-19 in the Commonwealth of Pennsylvania has

increased to more than 200,000, including more than 120,000 cases in this district. Daily new case

counts have also risen in recent weeks. Mitigation measures remain in place in the Commonwealth

of Pennsylvania and in the City of Philadelphia, including the requirement that masks or face

coverings must be worn in public settings and restrictions on the size of indoor events and

gatherings. Businesses are required to conduct their operations through individual teleworking

whenever possible and, if conducting in-person operations, must comply with all applicable

guidance issued by the Governor, the Pennsylvania Department of Health, and the Centers for

Disease Control and Prevention (CDC), including guidance for social distancing and cleaning. In

addition, individuals who travel to areas with a high number of COVID-19 cases are advised to

quarantine for 14 days upon their return to Pennsylvania.

The CDC and State and local public health authorities also continue to emphasize the need

for precautions to avoid exposure to the virus and prevent its spread, including maintaining six feet

of physical distance from others, wearing masks or face coverings in public, limiting nonessential

travel, avoiding public transportation when possible, working from home, avoiding large

gatherings, limiting the number and duration of in-person interactions, and regularly cleaning and

disinfecting frequently touched surfaces.

As the Court proceeds with its phased reopening pursuant to the Federal Judiciary COVID19 Recovery Guidelines and its own COVID-19 Reopening Guidelines, the Court continues to

carefully monitor the COVID-19 data for this district and the available guidance from government

officials and public health authorities to ensure that any increases in on-site activity can be

accomplished safely. In mid-September, the Court resumed holding jury trials on a limited basis

pursuant to its Initial Guidelines for the Reinstitution of Jury Trials, which include a number of

precautions to allow jury trials to proceed safely and in accordance with public health guidance.

As explained in the August 31, 2020, Standing Order, trials conducted pursuant to the Initial

Guidelines are both staff- and space-intensive. For example, to limit the number of people in one

room at a time and to ensure adequate space for physical distancing, jury selection for each trial

requires the use of four courtrooms as well as the jury assembly room. Once a jury is selected,

two courtrooms are used for each trial, and a third courtroom is used to allow the public to observe

the proceedings.

In light of the current conditions with respect to COVID-19 in this district, the Court

remains in the initial test period for jury trials. During this period, in order to limit the number of

jurors in the courthouse at one time and to ensure adequate staffing and the availability of sufficient

space for jury selection and trial, only one jury trial may be conducted at a time. Since jury trials

resumed the week of September 14, 2020, a total of four jury trials have been conducted to date.

Due to the health and safety considerations outlined above, it is anticipated that no more than five

jury trials will be conducted between now and December 31, 2020.

As jury trials proceed on this limited basis, criminal cases have been and will continue to

be prioritized. The Court continues to work with representatives of the U.S. Attorney’s Office and

the Federal Community Defender Office in this district to identify those cases that are ready to

proceed to trial and to prioritize the cases suitable to proceed in the initial round of jury trials. All

other trials will be continued in the interest of health and safety due to the ongoing public health

emergency and its impact on Court operations. It is therefore ORDERED as follows:

All civil jury selections and jury trials scheduled to begin on or before December

31, 2020, before any district or magistrate judge in any courthouse or Court location in this district

are CONTINUED pending further Court order.

With the exception of the limited number of cases designated for trial in November

or December pursuant to the procedure described above, all criminal jury selections and jury trials

scheduled to begin on or before December 31, 2020, before any district or magistrate judge in any