Opinion
Civil Action 20-cv-1655
09-19-2023
LAWRENCE J. MADISON, Petitioner, v. SUPERINTENDENT MICHAEL CLARK; and PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondents.
Re: ECF No. 1
Arthur J. Schwab, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
It is respectfully recommended that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 1, be dismissed as untimely. It is further recommended that a certificate of appealability be denied.
II. REPORT
Lawrence J. Madison (“Petitioner”) was, at the time of filing, a state prisoner held at the State Correctional Institution at Albion (“SCI-Albion”) in Albion, Pennsylvania. Id. at 1. In the Petition, he challenges the decision of Respondent Pennsylvania Board of Probation and Parole (the “Board”) to recommit him as a convicted parole violator. Id. at 5.
A. Relevant Background
The record indicates that, on August 21, 2006, Petitioner was sentenced to an aggregate term 2-to-5 years of incarceration by the Court of Common Pleas of Washington County in Commonwealth v. Madison, No. CP-63-CR-1673-2005. ECF No. 15-1 at 1-3. See also Docket, Com, v. Madison, No. CP-63-CR-1673-2005 (available at https://ujsportal.pacourts.us/Report/Cp DocketSheet?docketNumber=CP-63-CR-0001673-2005&dnh=WzPgq8a0aOXsMvxZpD9R6g% 3D%3D (last visited August 25, 2023)). Petitioner's controlling minimum date of confinement at that time was December 1, 2008, and his controlling maximum date was July 27, 2011. ECF No. 15-1 at 3.
The record further indicates that Petitioner was sentenced to an aggregate term of 2-4 years' incarceration in the Court of Common Pleas of Fayette County on December 1, 2006 for various property crimes at Docket Nos. CP-26-CR-1557-2006, CP-26-CR-1558-2006, CP-26-CR-1559-2006, and CP-26-CR-1560-2006. ECF No. 15-1 at 2-3. See also Docket, Com, v. Madison, No. CP-26-CR-1560-2006 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet7docketN umber=CP-26-CR-0001560-2006&dnh=OTVVlTBdcQWSWR037vJakQ%3D%3D (last visited Aug. 25,2023)). According to the electronic docket, Petitioner's 2006 sentences in Fayette County were concurrent to each other, and to his 2006 sentence in Washington County.
Petitioner was released on parole from his 2006 convictions on January 7, 2009. Id. at 9. As of the date of his release, Petitioner had 931 days to serve on that sentence.
On September 17, 2010, while on parole, Petitioner was arrested and charged with various property crimes in Washington County. Id. at 19-25. See also id. at 27-34 (docket sheet for No. CP-63-2224-2010). Petitioner initially was not detained in that case. Id. at 28.
On October 8, 2010, while on parole, Petitioner was arrested and charged with technical parole violations. He was detained on the Board's warrant. Id. at 14-17. Petitioner requested that his preliminary/detention hearing with respect to his technical parole violation charges be continued until further written notice. Id. at 36.
On December 1, 2010, and January 5, 2011, Petitioner was arrested for various property crimes in Fayette County, and charged at three separate criminal cases. Id. at 38-50 (docket sheet for No. CP-26-CR-1901-2010); id. at 52-64 (docket sheet for CP-26-CR-59-2011). See also Docket, Com, v. Madison, No. CP-26-CR-94-2011 (available at https://ujsportal.pacourts.us/Rep ort/CpDocketSheet?docketNumber=CP-26-CR-0000094-2011&dnh=gVqXi4M8pW055fszPRl ZNA%3D%3D (last visited Aug. 25, 2024)).
Petitioner ultimately pleaded guilty in the above-identified cases in Fayette County on May 2, 2011, and received an aggregate sentence in those cases of 2-4 years' imprisonment. ECF No. 15-1 at 41, 45, and 55; see also Docket, Com, v. Madison, No. CP-26-CR-94-2011.
Petitioner pleaded guilty in the Washington County case on July 7, 2011, and was sentenced to 1-2 years confinement followed by a year of probation. ECF No. 15-1 at 33.
On June 14, 2011, Petitioner was issued a Notice of Charges and Hearing document from the Board with respect to his 2011 convictions in Fayette County. Id. at 69-70. Petitioner signed a form waiver of revocation hearing and counsel with respect to the Fayette County convictions on the same date. Id. at 73. On the form, he admits to the 2011 Fayette County convictions, as well as to the fact that the crimes for which he was convicted occurred while he was on parole. Id.
On July 13, 2012, Petitioner was served with a Notice of Hearing and charges relating to the technical violations with which he was charged on October 8, 2010. Id. at 75-76. See also Id. at 14-17, and 36. A hearing was held on July 19, 2012, and Petitioner's technical parole violation charges were dismissed due to the untimeliness of the hearing. Id. at 78-83. It is noteworthy that the hearing and order related to the technical parole violation charges only. Id. at 83, 85-114, and 116.
On August 9 and September 6, 2012, the Board panel vote to recommit Petitioner as a convicted parole violator to serve 12 months based on his 2011 Fayette County convictions. Id. at 119-24. On September 6 and 19, 2012, the Board voted to note on the record Petitioner's 2011 conviction in Washington County “due to timeliness issues.” Id. at 126. On October 5, 2012, the Board mailed its decision to recommit Petitioner as a convicted parole violator and to serve 12 months' back time. Id. at 128.
Petitioner timely sought administrative review from the Board's decision to recommit him as a convicted parole violator. Id. at 131-35. His admirative appeal was denied on January 31, 2013. Id. at 138. Petitioner timely filed a petition for review with the Pennsylvania Commonwealth Court, which was denied on April 7, 2014. Id. at 139; see also Madison v. Bd. of Prob, and Parole, No. 277 C.D. 2013, 2014 WL 1370294 (Pa. Commw. Ct. Apr. 7, 2014).
Petitioner timely sought leave to appeal from the Pennsylvania Supreme Court, which was denied on September 17, 2014. ECF No. 15-1 at 149; see also Docket, Madison v. Bd of Prob. and Parole, No. 218WAL 2014 (available at https://ujsportal.pacourts.us/Report/PacDocketSheet ?docketNumber=218%20WAL%202014&dnh=DqwPsVjjzzaGGHUJlbK8KA%3D%3D (last visited Aug. 25, 2023)).
The instant Petition was received on October 30, 2020. However, it is dated October 17, 2020. ECF No. 1 at 19. Presuming that this is the date on which it was placed in the prison mail system, the Petition has an effective filing date of October 17, 2020. Bums 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.”). The sole ground for relief raised in the Petition is:
WHETHER MY DUE PROCESS RIGHTS WERE VIOIATED WHEN I HAD ALL [TECHNICAL PAROLE VIOLATION] AND [CONVICTED PAROLE VIOLATOR] CHARGES DROPPED AT A PBPP HEARING FOR A VIOIATION OF THE 120 DAY THEN THE PBPP CHANGES THE RULING IN WRITING?ECF No. 1 at 5.
Petitioner supplemented the Petition on January 4, 2021 with a purported affidavit, in which he avers that his charges of being a convicted parole violator were dismissed along with his technical parole violation charges as untimely at his hearing on July 19, 2012. ECF No. 13 at 1. Respondents' Answer was filed on February 12, 2021. ECF No. 15. Petitioner did not submit a traverse. LCvR 2252.E.2.
This assertion is flatly contradicted by the transcript of that hearing. ECF No. 15-1 at 93 (“ [PETITIONER'S ATTORNEY]: .... I want to make a motion to dismiss the technical violation charges based upon Mr. Madison not having a violation hearing within 120 days [.]”). Id. at 111 (“HEARING EXAMINER: Okay. We were dealing with your technical parole violations today.” Id. (“However, you also waived your - you signed a waiver for your revocation hearing prior to these proceedings.”).
The Petition is ripe for consideration.
B. Discussion
A petition pursuant to 28 U.S.C. § 2254 is the proper statutory section to invoke when challenging a parole decision. Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001). The first consideration in reviewing a federal habeas corpus petition under Section 2254 is whether the petition was timely filed within the applicable statute of limitations.
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDP A”), Pub. L. No. 104-132, 110 Stat. 1214, which established, generally, 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;
(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 postconviction 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). Section 2244(d)'s statute of limitations has been applied to habeas petitions challenging parole decisions. Strait v. Bd. of Prob, and Parole, 08-CV-2280, 2009 WL 5112009, at *4-5 (M.D. Pa. Dec. 16, 2009)
The United States Court of Appeals for the Third Circuit has held that the statute of limitations set 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. In the context of the instant Petition, the trigger date at least arguably is “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” as set forth in Section 2244(d)(1)(D).
Second, the court must determine whether any “properly filed” applications for postconviction or collateral relief were pending during the limitations period that would toll the statute pursuant to § 2244(d)(2).
Third, the court must determine whether any other statutory exceptions or equitable tolling should be applied on the facts presented. See, e.g., Munchinski v. Wilson, 807 F.Supp.2d 242,263 (W.D. Pa. 2011), affd, 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)).
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. Holland, 560 U.S. 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 Corrs., 145 F.3d 616, 619 (3d Cir. 1998). Additionally, “[i]n noncapital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the ‘extraordinary' circumstances required for equitable tolling.” See Fahy v. Hom, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
While Holland did not involve an appeal from a decision of a district court within the Third Circuit, it did affirm the practice of courts within this circuit of granting equitable tolling in cases where the above-mentioned conditions have been met. See, e.g., LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005). In LaCava, the Third Circuit emphasized that “[e]quitable tolling is appropriate when ‘the principles of equity would make the rigid 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).
Here, the applicable trigger date appears to be October 5, 2012 - the date on which the Board mailed its decision to recommit Petitioner. ECF No. 15-1 at 128-29.
As stated above, Petitioner timely sought administrative review of the Board's decision. 61 Pa. C.S.A. § 6113(d) and 37 Pa. Code § 73.1(a). He then timely filed a petition for review with the Commonwealth Court. 42 Pa. C.S.A. § 763. See Bronson v. Com. Bd. of Prob, and Parole, 421 A.2d 1021, 1025-26 (Pa. 1980) (concluding that the Commonwealth Court had jurisdiction over the appeal from a parole revocation decision made by the Board). Finally, he timely sought leave to appeal from the Pennsylvania Supreme Court. 42 Pa. C.S.A. § 724; see also McMahon v. Bd. of Prob, and Parole, 470 A.2d 1337 (Pa. 1983).
Therefore, the statute of limitations clock was tolled under Section 2244(d)(2) until September 17, 2014 - the date on which the Pennsylvania Supreme Court denied allocatur. ECF No. 15-1 at 149. In order for the Petition to have been timely, it would have to have been filed on or before September 17, 2015. But it was not filed until October 17, 2020 - more than five years later. Accordingly, the Petition is untimely.
Moreover, nothing on the record indicates that the statute of limitations should be equitably tolled. To the extent that Petitioner might rely on an open records dispute regarding receipt of the transcripts of his parole hearing of July 19, 2012, ECF No. 1-4 at 1, it is noteworthy that Petitioner's issue with respect to that hearing was asserted in his 2012 petition for administrative review. ECF No. 15-1 at 133-34 (incorrectly stating that the hearing occurred on June 14, 2012). See also id. at 85 (transcript of the hearing of July 19, 2012, indicating that Petitioner was present at that hearing).
Nor has Petitioner established that he is actually innocent of the charges. McQuiggan v. Perkins, 569 U.S. 383, 398-99 (2013) (recognizing an actual innocence exception to the AEDPA's statute of limitations).
The Petition is untimely by five years. There is no basis on the record to toll the statute or excuse Petitioner's untimeliness. The Petition should be dismissed.
C. Certificate of Appealability
A certificate of appealability should be denied because jurists of reason would not find it debatable whether Petitioner's claims are barred by the statute of limitations. See, e.g.. Slack v. McDaniel, 529 U.S. 473 (2000).
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that the Petition, ECF No. 1, be dismissed as untimely. It is further recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.