THOMPSON v. SOUTHERS et al
Filing
11
ORDER THAT: THOMPSON'S OBJECTIONS ARE OVERRULED AND THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THOMPSON'S MOTION FOR DISCOVERY IS DENIED; THOMPSON'S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. SEC. 2254 IS DENIED; THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 10/25/12. 10/25/12 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(fb)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFREY THOMPSON
v.
RICHARD SOUTHERS, et al.
:
:
:
:
:
CIVIL ACTION
NO. 12-123
ORDER
AND NOW, this 25th day of October, 2012, upon
consideration of petitioner Jeffrey Thompson’s petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry # 1),
Thompson’s motion for discovery (docket entry # 7), United States
Magistrate Judge Elizabeth T. Hey’s Report and Recommendation
(docket entry # 8), to which Thompson filed objections (docket
entry # 10), and the Court finding that:
(a)
On October 3, 2006, Judge Anthony A. Sarcione of
the Chester County Court of Common Pleas conducted a plea hearing
at which Thompson pled guilty to the second degree murder, 18 Pa.
Cons. Stat. § 2502(b), and robbery, 18 Pa. Cons. Stat. §
3701(a)(1)(i), of sixteen-year old Gregory Paschall, Junior on
February 12, 2005;
(b)
As to the second degree murder charge and its
predicate robbery charge, the parties agreed as to the necessary
elements of these offenses, Oct. 3, 2006 Tr. 27:14-29, 31:4-32:19,
43:5-47:4;
(c)
At the plea hearing, the Commonwealth offered to
prove the following at trial:
This incident occurred in the early
morning hours of February 12th, 2005 at 14
Railroad Street in Phoenixville, Chester
County, Pennsylvania. On that date, Jeffrey
Thompson caused the death of Gregory Paschall,
whose date of birth was February 13, 1988,
while Thompson was engaged in the perpetration
of a felony, that being a robbery. And the
robbery statute is inflicting serious bodily
injury in the course of committing a theft.
Thompson caused Gregory’s death by
striking him in the head at least twice with a
metal bar approximately four feet long,
resulting in fatal head trauma to Gregory’s
head. Thompson then took approximately $100
from Gregory’s pocket.
Dr. Ian C. Hood, a forensic pathologist,
determined the cause and manner of death to a
reasonable degree of medical certainty.
Thompson did confess to these acts in a
statement to police.
id. 86:1-24;
(d)
Judge Sarcione then asked Thompson if he heard,
agreed, and admitted to the facts as stated by the district
attorney and Thompson replied, “Yes, I do”, id. 87:1-5;
(e)
Thompson also expressed his understanding that “by
admitting those facts and pleading guilty . . . [he was] saying,
Judge, you can treat me as having committed the crime of second
degree murder, felony murder that is the subject of this plea
agreement”, id. 87:6-12;
2
(f)
Judge Sarcione’s colloquy leaves no doubt that
Thompson knowingly and voluntarily entered into his guilty plea,
id. 21:12-15,24:11-20,58:17-62:9, 111:5-112:14;
(g)
Indeed, at the same proceeding, Thompson himself
read a statement in open court wherein he admitted: “I killed
Gregory Paschall, Junior”, 113:6-7; see also id. 113:22-23 (“I
took your son’s life”); id. 114:4-7 (“I’m sorry I took the life of
your G.
I’m sorry.
(h)
I’m sorry, I killed your boyfriend G.”);
Now, several years later, Thompson has changed his
tune and filed a petition for habeas corpus relief under section
2254 alleging, among other things, that his plea was coerced;
(i)
The case was referred to Judge Hey for a Report and
Recommendation (the “R&R”);
(j)
After thoroughly reviewing the parties’ submissions
and the record in this matter, Judge Hey’s R&R reasons that
Thompson’s federal habeas corpus petition is untimely under 28
U.S.C. § 2244(d) because he had until November 2, 2007 to file his
petition but did not do so until January 3, 2012, R&R 5-6;
(k)
The R&R concludes that the federal petition should
be dismissed as untimely because there is no applicable statutory
3
or equitable tolling that saves Thompson’s untimely federal
petition from pre-merits-determination dismissal1;
(l)
In his objections,2 Thompson: (1) challenges the
constitutionality of AEDPA’s timelines for filing habeas corpus
petitions, § 2244(d)3; (2) reiterates his contention that “[t]he
1
The R&R focuses on whether Thompson’s habeas corpus
petition is time barred by AEDPA’s one-year limitations period
and not whether his claims are procedurally defaulted such that a
federal court cannot reach the merits of these claims because of
federalism concerns. Judge Hey’s R&R acknowledges that whether a
petition is “time barred” under section 2244(d) is a distinct
inquiry from whether a claim was “procedurally defaulted” in the
state system. See Holland v. Florida, 130 S. Ct. 2549, 2563
(2010) (explaining that the procedural default inquiry is an
issue of federalism that “ask[s] whether federal courts may
excuse a petitioner’s failure to comply with a state court’s
procedural rules, notwithstanding the state court’s determination
that its own rules had been violated. Equitable tolling, by
contrast, asks whether federal courts may excuse a petitioner’s
failure to comply with federal timing rules, an inquiry that does
not implicate a state court’s interpretation of state law”); Pace
v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction
petition is untimely under state law, ‘that [is] the end of the
matter’ for purposes of § 2244(d)(2).” (alterations and quotation
marks in original)); Merritt v. Blaine, 326 F.3d 157, 161 (3d
Cir. 2003); Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir.
2002). This distinction appears to be lost on Thompson here.
2
We review de novo only those objected-to portions of
the R&R. 28 U.S.C. § 636(b)(1); Loc. R. Civ. P. 72.1 IV(b); see
Rule 8(b) of the Rules Governing Section 2254 Cases in the United
States Courts; Medina v. Diguglielmo, 461 F.3d 417, 426 (3d Cir.
2006); see also Notice to Thompson attached to the R&R.
3
Judge Hey’s R&R does not address this issue.
Thompson, however, did not waive this argument before Judge Hey
(continued...)
4
significant aspect [of his petition] is the claim of Thompson’s
actual innocence and the miscarriage of justice”, Objections 1;
(3) asserts that we should not deny his motion for discovery; and
(4) contends that Jackson v. Virginia, 443 U.S. 307 (1979),
governs the “actual innocence” inquiry here, not Schlup v. Delo,
513 U.S. 298, 327 (1995);
(m)
Turning first to Thompson’s constitutional
objections, he asserts that “[t]he Constitution enumerates no
timelines for the filing of a Habeas petition” and “[b]y this
Court following [Congress’s] unconstitutional constraints [as
enacted in AEDPA,] Thompson is denied an opportunity of any
attempt” to pursue habeas corpus relief, Objections 4 (emphasis
added);
3
(...continued)
because his reply to Respondents’ response asserted the argument
that “an Article III Court must follow its constitutional mandate
of its enumerated power and review the issues presented on their
merit and not default an unconstitutional statute, 28 U.S.C.
§§§2244(d), 2254(d)(1) and (2). These statutes have exceeded
Congressional authority.” Reply 2 ¶ 4; see also Section 2254
Memorandum 7-9; Objections 4-5.
5
(n)
Liberally construing Thompson’s pro se petition and
objections, we view his constitutional claim as arising under the
Suspension Clause,4 see Objections 4-5;
(o)
To the extent Thompson raises a facial challenge to
the constitutionality of AEDPA’s one-year statute of limitations,
the Third Circuit has not addressed whether AEDPA’s one-year
limitations period withstands a facial challenge under the
Suspension Clause, see Cadmus v. United States, 356 F. App’x 559,
560 (3d Cir. 2009); United States v. Bendolph, 409 F.3d 155, 167
n.18 (3d Cir. 2005);
(p)
Those courts of appeals that have addressed this
issue have uniformly rejected it5;
4
Other courts have addressed the constitutionality of
AEDPA under the Ex Post Facto Clause. See, e.g., Rashid v.
Khulmann, 991 F. Supp. 254, 261 (S.D.N.Y. 1998) (Sotomayor, D.
Ct. J.). Even if Thompson sought to assert a constitutional
challenge to the limitations period under this constitutional
provision, it would fail here since the events relevant to
Thompson’s crime and plea postdate AEDPA’s 1996 enactment.
If Thompson is arguing that § 2244(d)(1) violates his
due process or equal protection rights, these arguments would
fail because they merely “repackage” the facial and as applied
Suspension Clause arguments that we reject. Accord Drach v.
Bruce, 305 F. App’x 514, 518 (10th Cir. 2008); Vanzant v.
Diguglielmo, No. 08-5111, 2009 WL 6667923, at *14 n.20 (E.D. Pa.
Nov. 20, 2009) (Hey, Mag. J.), report and recommendation approved
and adopted by, 2010 WL 2813414 (July 14, 2010) (Dalzell, J.).
5
See, e.g., Delaney v. Matesanz, 264 F.3d 7, 11–12
(continued...)
6
(q)
The Suspension Clause of the United States
Constitution, Art. I, § 9, cl. 2, provides that “[t]he Privilege
of the Writ of Habeas Corpus shall not be suspended, unless when
in Cases of Rebellion or Invasion the public Safety may require
it”;
(r)
The Supreme Court in Swain v. Pressley, 430 U.S.
372, 382 (1977), held that “the substitution of a collateral
remedy which is neither inadequate nor ineffective to test the
legality of a person’s detention does not constitute a suspension
of the writ of habeas corpus”;
(s)
Persuaded by the reasoning of those courts of
appeals that have reached this issue, we hold that AEDPA’s oneyear limitations period affords petitioners “some reasonable
opportunity to have their [habeas corpus] claims heard on the
merits,” thus “the limitations period does not render the [§ 2254]
remedy ‘inadequate or ineffective to test the legality of
detention,’ and therefore does not per se constitute an
5
(...continued)
(1st Cir. 2001); Wyzykowski v. Department of Corrections, 226
F.3d 1213, 1217 (11th Cir. 2000); Green v. White, 223 F.3d 1001,
1003–04 (9th Cir. 2000); Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 113 (2d Cir. 2000); Turner v. Johnson, 177
F.3d 390, 392 (5th Cir. 1999); Miller v. Marr, 141 F.3d 976, 977
(10th Cir. 1998).
7
unconstitutional suspension of the writ of habeas corpus”, see
Lucidore, 209 F.3d at 114; cf. Felker v. Turpin, 518 U.S. 651, 664
(1996) (holding AEDPA’s restrictions on successive petitions “do
not amount to a ‘suspension’ of the writ” and “judgments about the
proper scope of the writ are normally for Congress to make”
(internal quotation marks omitted));
(t)
And if Thompson is bringing an as applied challenge
to AEDPA’s one-year statute of limitations, his argument fails
because he does not demonstrate “‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing” to
thus entitle him to equitable tolling in this case, see Holland v.
Florida, 130 S. Ct. 2549, 2560, 2562 (2010) (holding that §
2244(d) is subject to equitable tolling in appropriate cases)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005), for the
two-pronged equitable tolling standard)); see Tinker v. Moore, 255
F.3d 1331, 1334 (11th Cir. 2001) (pre-dating Holland but holding
that “the availability of equitable tolling . . . ensures that §
2244’s limitation is constitutionally applied” (emphasis added)
(internal quotation marks and citations omitted)); accord R&R 7-8
(explaining in an unobjected-to portion of the R&R that Thompson
fails to proffer any reason for the four year delay in filing his
8
federal habeas corpus petition and thus he fails the diligence
prong)6;
(u)
Turning to Thompson’s intertwined “actual
innocence” and “miscarriage of justice” argument, as an initial
matter we need not address Thompson’s “miscarriage of justice”
argument because it relies on the standard federal courts must use
in determining whether to excuse procedural default;
(v)
As we have said, our inquiry here is focused on
whether Thompson’s claims are time barred under AEDPA’s one-year
statute of limitations, see note one, supra;
(w)
The procedural default “miscarriage of justice”
standard has no place in our analysis of whether there is any
statutory tolling7 or equitable tolling8 under the facts here;
6
Since Thompson does not object to the R&R’s general
statutory or equitable tolling reasoning, we need not engage in
de novo review of these portions of the R&R. We do review de
novo the R&R’s equitable tolling reasoning to the extent that it
addresses actual innocence. See paragraphs (x)-(ff), infra.
7
See Pace, 544 U.S. at 414 (“When a postconviction
petition is untimely under state law, ‘that [is] the end of the
matter’ for purposes of § 2244(d)(2).” (alterations and quotation
marks in original)); accord Williams v. Birkett, 670 F.3d 729,
736 (6th Cir. 2012) (“Because Williams’s second post-conviction
motion was denied under [state procedural law], and thus was not
“properly filed” under § 2244(d)(2), his successive motion did
not toll AEDPA’s one-year time limitation. Therefore, Williams’s
habeas petition was untimely, unless equitably tolled.”);
(continued...)
9
(x)
Turning, then, to Thompson’s “actual innocence”
claim, the R&R assumes for sake of argument that there is an
actual innocence exception to the time bar9 and reasons that
Thompson does not satisfy the “new evidence”-based standard
adopted in Schlup v. Delo, 513 U.S. 298, 327 (1995) (“The . . .
standard requires the habeas petitioner to show that ‘a
constitutional violation has probably resulted in the conviction
of one who is actually innocent.’
To establish the requisite
probability, the petitioner must show that it is more likely than
not that no reasonable juror would have convicted him in the light
7
(...continued)
Brunsilius v. Brill, 303 F. App’x 610, 612 (10th Cir. 2008)
(“both of Mr. Brunsilius’s 2001 and 2007 state post-conviction
motions were denied on the basis of procedural default,
disqualifying them from the tolling exception because neither
qualified as a ‘properly filed application’”).
8
See Holland, 130 S. Ct. at 2562. Indeed, Thompson’s
procedural default in the state system and long delay in filing
his petition in federal court foreclose any claim that Thompson
was “pursuing his rights diligently” in this tribunal. See
paragraph (t); see also paragraph (qq) (explaining that
“insufficient evidence” is a distinct inquiry from “actual
innocence”, consequently “insufficient evidence” alone does not
constitute another equitable tolling exception).
9
See Parham v. Klem, No. 11-2590, 2012 WL 4040285, at
*3 (3d Cir. Sept. 14, 2012) (“If we were to hold that a gateway
claim of actual innocence can equitably toll the statute of
limitations (which we expressly decline to do in this case) . . .
.”).
10
of the new evidence.” (emphasis added)); see Sistrunk v. Rozum,
674 F.3d 181, 191 (3d Cir. 2012) (“Proving actual innocence based
on new evidence requires the petitioner to demonstrate (1) new
evidence (2) that is reliable and (3) so probative of innocence
that no reasonable juror would have convicted the petitioner.
Schlup, 513 U.S. at 324, 327, 115 S.Ct. 851; see also House v.
Bell, 547 U.S. 518, 536–537, 126 S. Ct. 2064, 165 L. Ed. 2d 1
(2006).
prevail.
All three Schlup factors are necessary for Sistrunk to
See House, 547 U.S. at 536–537, 126 S.Ct. 2064.
fails each.
He
First, as discussed, Sistrunk’s evidence is not
‘new.’”); see also R&R 13 (“Petitioner has not pointed to any new
evidence to contradict his repeated admissions at the guilty plea
hearing, and certainly no evidence from which a court could
conclude that it is more likely than not that no reasonable juror
would have found him guilty beyond a reasonable doubt.”);
(y)
“‘[A]ctual innocence’ [under Schlup] means factual
innocence, not mere legal insufficiency”, Bousley v. United
States, 523 U.S. 614, 623-24 (1998), and “[i]n cases [like
Thompson’s] where the Government has forgone more serious charges
in the course of plea bargaining, petitioner’s showing of actual
innocence must also extend to those charges”, id. at 624;
11
(z)
By Thompson’s own admission, his “actual innocence”
claim is not predicated on the existence of “new evidence”,
see Objections 3 (“The R & R addresses the actual innocence under
Schlup.
However, since matter deals with existing evidence, and
not new; it should be reviewed in light of Jackson v. Virginia,
443 U.S. 307 [(1979)]”);
(aa) Thus, his “actual innocence” claim fails on this
basis alone, see Sistrunk, 674 F.3d at 191;
(bb) Moreover, Thompson does not specifically identify
any evidence -- new or old -- that is “so probative of [his]
innocence that no reasonable juror would have convicted the
petitioner”, id.;
(cc) At this very late date, his claims of “actual
innocence” merely challenge the alleged “legal insufficiency” of
the Commonwealth’s case against him at the time he pled guilty10;
10
Thompson’s petition asserts four grounds he claims
warrant habeas corpus relief: (1) the Court of Common Pleas’s
failure to rule on the suppression of his statement; (2) the
voluntariness of his plea; (3) the Commonwealth’s insufficient
evidence to support the plea; and (4) miscarriage of justice (a
catchall ground for relief that incorporates the first three).
12
(dd) Thompson fails to point to any new, real (or
hypothetical11) evidence that proves his innocence as a factual
matter on the second degree murder and the other “more serious
charges [abandoned by the Commonwealth] in the course of plea
bargaining” with him,12
Bousley, 523 U.S. 624;
(ee) Thompson fails to cross the Schlup threshold, see
Bousley, 523 U.S. at 623-24;
(ff) Since Thompson cannot demonstrate his innocence
under Schlup, equitable tolling (even if available on this basis)
would not apply here13;
11
For examples of the hypothetical evidence Thompson
seeks, see paragraph (jj).
12
Thompson’s memorandum conclusorily asserts that “the
evidence [offered by the Commonwealth] to support the plea would
have given a jury reasonable doubt on a First Degree Murder
charge and therefore supports the Petitioner’s planned argument
for imperfect self-defense.”
Section 2254 memorandum 3-4.
Thompson attacks the sufficiency of the Commonwealth’s evidence
behind the more severe charge that it ultimately dropped after
entry of the plea agreement. This sufficiency-of-old-evidence
argument as to the more serious charge that the Commonwealth
abandoned is inadequate under Schlup. See Bousley, 523 U.S. 624
13
Our position is fortified by the plea hearing record
that unequivocally shows that Thompson knowingly and voluntarily
pled guilty, agreed to the Government’s factual proffer, and
repeatedly admitted to having killed Gregory Paschall, Junior.
13
(gg) Since the R&R’s federal petition untimeliness
recommendation survives Thompson’s objections, we will accept and
adopt the R&R in light of our reasoning here;
(hh) We are thus barred from reaching the merits of
Thompson’s § 2254 petition;
(ii) Thompson’s two remaining objections do not alter
our analysis;
(jj) Thompson’s third objection claims that his actual
innocence and miscarriage of justice arguments “could have been
evaluated, more closely, by this Court had the Motion for
Discovery been permitted.
This Motion sought documentation from
the public defenders office or the district attorney’s office
relative to the records on this coerced guilty plea”, Objections
2-3; Discovery Mot. 1 (“seek[ing] correspondence, and other
documents, relative to his being forced to take a guilty plea
rather than go to trial as planned”);
(kk) Rule 6(a) of the Rules Governing Section 2254
Proceedings for the United States District Courts provides, in
pertinent part, that “[a] judge may, for good cause, authorize a
party to conduct discovery”;
(ll) The Supreme Court has held that “‘where specific
allegations before the court show reason to believe that the
14
petitioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief, it is the duty of
the court to provide the necessary facilities and procedures for
an adequate inquiry’”, Bracy v. Gramley, 520 U.S. 899, 908-09
(1997) (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969));
(mm) Though the Supreme Court held that there was “good
cause” to warrant section 2254 habeas corpus discovery in Bracy,
the Court went to great lengths to note that the petitioner there
“support[ed] his discovery request by pointing not only to
[uncontroverted evidence of judicial misconduct] in other cases,
but also to additional evidence . . . that lends support to his
claim that [the judge] was actually biased in petitioner’s own
case”, id. at 909 (emphasis added);
(nn) In sharp contrast to Bracy, Thompson’s motion for
discovery is (1) supported by mere speculation and he offers no
evidence that lends support to his claim that his plea agreement
was coerced, and (2) even if the sought-after evidence was
produced, it could not alter our equitable tolling analysis and
save Thompson’s untimely petition;
(oo) As noted above, Thompson’s sought-after discovery
would not help to establish his “factual innocence” under Schlup
because, though a “coerced guilty plea” would be an affront to the
15
legal sufficiency of the proceedings against him, it has no
bearing on the question of his factual innocence of second degree
murder and robbery and, in turn, it would not alter our holding
that there should be no equitable tolling;
(pp) Thompson has failed to specifically allege any
facts that give us any reason to believe that he may be able to
demonstrate his actual innocence so as to trigger any equitable
tolling to save his otherwise untimely petition and, consequently,
his discovery motion will be denied, cf. United States v. PadillaCastro, 426 F. App’x 60, 63-64 (3d Cir. 2011) (holding that no
evidentiary hearing was required where the record conclusively
showed that section 2255 petitioner “did not lack necessary
information” to understand his plea agreement such that “[t]here
is no indication that coercion or other factors rendered his
answers in the plea colloquy unreliable”);
(qq) As to Thompson’s fourth objection, Judge Hey’s R&R
implicitly (and quite properly) ignores Thompson’s “insufficiency
of the evidence” argument under Jackson v. Virginia, 443 U.S. 307,
324 (1979), because analysis of this issue would impermissibly go
to the merits of an untimely habeas corpus petition, cf. United
States v. Gieswein, No. 11-6218, 2012 WL 3798035, at *2 n.2 (10th
Cir. Sept. 4, 2012) (“challenge to the legal sufficiency of the
16
trial evidence . . . does not inherently translate to an
affirmative claim of actual innocence.
See House v. Bell, 547
U.S. 518, 538 (2006) (noting ‘actual-innocence standard is by no
means equivalent to the standard . . . which governs claims of
insufficient evidence’ (internal quotation marks omitted); see
also, e.g., United States v. Ratigan, 351 F.3d 957, 963–65 (9th
Cir. 2003) (noting challenge to sufficiency of trial evidence did
not constitute actual-innocence claim to obviate procedural
default); Awon v. United States, 308 F.3d 133, 143 (1st Cir. 2002)
(same)”); and
(rr) For the reasons given here, Thompson has failed to
make a substantial showing of the denial of a constitutional right
and we will not issue a certificate of appealability, 28 U.S.C. §
2253(c); see Slack v. McDaniel, 529 U.S. 473, 478 (2000) (“When
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” (emphasis added)); see
also Loc. App. R. 22.2;
17
It is hereby ORDERED that:
1.
Thompson’s Objections are OVERRULED and the Report
and Recommendation (docket entry # 8) is APPROVED and ADOPTED;
2.
Thompson’s motion for discovery (docket entry # 7)
is DENIED;
3.
Thompson’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (docket entry # 1) is DENIED;
4.
Thompson having failed to make a substantial
showing of the denial of a constitutional right, we DECLINE to
issue a certificate of appealability; and
5.
The Clerk of Court shall CLOSE this case
statistically.
BY THE COURT:
/s/ Stewart Dalzell, J.
18
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