JONES v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 14

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED; REPORT AND RECOMMENDATIONS IS APPROVED AND ADOPTED; WE DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY ; AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 10/15/13. 10/16/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED TO COUNSEL.(lvj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SASALADINE JONES
v.
COMMONWEALTH OF
PENNSYLVANIA, et al.

:
:
:
:
:
:

CIVIL ACTION

NO. 12-6166

ORDER
AND NOW, this 15th day of October, 2013, upon
consideration of petitioner Sasaladine Jones’s pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket
entry # 1), our Order referring this matter to the Honorable
Jacob P. Hart for a report and recommendation (docket entry # 2),
defendants’ response (docket entry # 10), Judge Hart’s report and
recommendation (“R&R”) (docket entry # 11), and Jones’s
objections thereto (docket entries # 12 & 13), and the Court
finding that:
(a)

A jury convicted Jones of first degree murder,

carrying a firearm without a license, and possession of an
instrument of crime on June 15, 2007, Commonwealth v. Jones, No.
2849 EDA 2011 (Pa. Super. Ct. Aug. 26, 2011), Comm. Resp. Exh. at
1-2 (quoting PCRA court findings);
(b)

Jones received a sentence of life in prison and an

aggregate, consecutive term of six to twelve years in prison for

the firearm and possession convictions, Pet. at 1; R&R at 1, and
his conviction became final on August 27, 2007, when his time for
filing a direct appeal to the Pennsylvania Superior Court
elapsed, R&R at 3 (citing Kapral v. United States, 166 F.3d 565,
575 (3d Cir. 1999));
(c)

He filed two petitions in the courts of the

Commonwealth pursuant to the Post-Conviction Relief Act (“PCRA”),
on June 10, 2009 and August 3, 2010, see Commonwealth v. Jones,
No. 2849 EDA 2011 at 3;
(d)

Because a petitioner must file a PCRA petition

within one year of the date on which his judgment becomes final,
see 42 Pa. Cons. Stat. Ann. § 9545(b), these petitions were
untimely, and the PCRA court dismissed them as such, see
Commonwealth v. Jones, No. 2849 EDA 2011 at 6 (affirming the PCRA
court’s order dismissing Jones’s PCRA petition without a
hearing);
(e)

Pursuant to the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), petitioners must file actions for
habeas corpus relief within one year of the date on which their
convictions become final, see 28 U.S.C. § 2244(d)(1), and because

2

Jones’s conviction became final on August 27, 2007, the deadline
for filing a habeas corpus petition was August 27, 2008;
(f)

Jones filed the instant action on October 31, 2012,

over four years after the deadline, and absent a basis for
tolling, his claim is thus time-barred;
(g)

The habeas statute does contain a provision for

statutory tolling, according to which, “[t]he time during which a
properly filed application for state post-conviction or other
collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation
under this subsection”, 28 U.S.C. § 2244(d)(2) (emphasis added);
(h)

Judge Hart found, and we agree, that because

Jones’s PCRA petitions were untimely, they were not “properly
filed” and thus cannot provide a basis for statutory tolling, see
R&R at 5-6 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005)
for the proposition that “[w]hen a postconviction petition is
untimely under state law, ‘that [is] the end of the matter’ for
purposes of § 2244(d)(2)”);
(i)

AEDPA’s one-year time limit is also subject to

equitable tolling where “principles of equity would make the
rigid application of a limitation period unfair”, Miller v. New
3

Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir.
1998) (internal alterations and quotations omitted);
(j)

In order to claim equitable tolling, a petitioner

must show “that he or she exercised reasonable diligence in
investigating and bringing the claims.

Mere excusable neglect is

not sufficient”, id. at 618-19 (internal alterations omitted);
(k)

As our Court of Appeals explained in Jones v.

Morton, 195 F.3d 153 (3d Cir. 1999), equitable tolling is
appropriate where the party asserting it has (1) been actively
misled, (2) “‘in some extraordinary way’ been prevented from
asserting his rights,” or (3) “timely asserted his rights
mistakenly in the wrong forum”, id. at 159;
(l)

Jones asserted in his habeas petition, and he

reiterates in his objections, that he thought his trial counsel
had filed an appeal on his behalf, see Pet. at 3; R&R at 5; Obj.
at 2-3;
(m)

Judge Hart noted that Jones had informed the state

court that he wanted to represent himself and did not want his
appointed attorney to represent him, see Commonwealth v. Jones,
No. 2849 EDA 2011 at 2; see also N.T. 7/27/07 at 3-5;

4

(n)

As Jones’s trial counsel, Jay Gottlieb, explained

during Jones’s sentencing, Jones had taken the stand during
trial, and when trial counsel began questioning him, he said that
he no longer wished to testify;
(o)

As Mr. Gottlieb explained, Jones then said he

wished to represent himself:
He came off the stand, we conducted another
colloquy and at that time, he told the Court
he wished to represent himself. The case
closed and Mr. Jones made the closing argument
to the jury. Your Honor at that time asked
would I stay at defense counsel table and I
said sure.
N.T. 7/27/07 at 4-5;
(p)

When the Court asked Jones if he wished for Mr.

Gottlieb to speak on his behalf during the sentencing hearing,
Jones declined, id. at 6;
(q)

As the transcript of the sentencing hearing

reveals, when the trial court advised Jones of his appeal rights,
he seemed uninterested in taking an appeal:
THE COURT: Do you understand that if you wish
to file an appeal, you have to do so within 30
days.
Do you understand that, Mr. Jones?
THE DEFENDANT: I’m reading.

5

THE COURT: Let me explain a little bit about
it. Do you understand -THE DEFENDANT: I heard what you said.
THE COURT: -- that you have to file your
appeal within 30 days?
THE DEFENDANT: Yes.
THE COURT: There are other detailed
instructions that I’m giving you in writing so
that you will be on notice of your appeal
rights, do you understand that []?
Do you wish Mr. Gottlieb to file an appeal for
you?
THE DEFENDANT: I don’t even give a fuck. Fuck
you. Fuck everybody. Fuck all y’all. Fuck
all y’all.
. . .
THE COURT: Mr. Jones, do you understand that
Mr. Gottlieb is still your advisory counsel
and that if you want, he will perfect an
appeal for you?
THE DEFENDANT: Miss, I don’t give a fuck about
none of this shit no more. You just gave me
life plus 12? Fuck you. Fuck this Court.
Fuck everything. I don’t care. I don’t give
a fuck what you talking about. Fuck you.
THE COURT: I don’t care what you think about
anything, I want to make sure you understand
your rights.
THE DEFENDANT: Fuck you.

6

THE COURT: I offered you to have Mr. Gottlieb
perfect your appeal. If you want him to do
that, tell him now or contact him later. You
can file your own appeal.
THE DEFENDANT:

Fuck all y’all.

N.T. 7/27/07 at 20-22;
(r)

Thus, though Jones argues that “[a]fter a man being

given a life sentence and never ask the trial counsel to appeal
his case sounds strange”, Pet. Obj. at 2, that scenario is more
plausible in light of what Jones’s sentencing transcript reveals;
(s)

In contending that he asked Mr. Gottlieb to file an

appeal on his behalf, Jones objects that Judge Hart failed to
consider that “Petitioner had previously expressed his desire to
contest the verdict if found guilty and that it was very unclear
whether or not the Petitioner was clear about his appellate
rights given his state of mind during sentencing”, Pet. Obj. at
3;
(t)

Jones received a copy of his appellate rights

during his sentencing, so he could have revisited them within the
thirty-day window, and if he had previously asked his attorney to
file an appeal -- a contention for which he provides no support -

7

- he did not renew this request when he was sentenced despite the
Court’s repeated invitations to do so;
(u)

Moreover, Judge Hart noted that though Jones

“claims that once he discovered that his attorney had not filed a
direct appeal he filed a PCRA petition”, Pet. at 14, the record
does not support this contention;
(v)

Jones says that he received “proof of his claim”

that his attorney failed to file an appeal when he contacted the
trial court on December 17, 2007, Pet. at 14;
(w)

This was within the one-year limit, but Jones

nevertheless failed to file a PCRA petition until over a year and
a half later, on June 10, 2009;
(x)

Judge Hart thus concluded that equitable tolling

was inappropriate because “Jones has not demonstrated that he
acted with due diligence in bringing his claims,” and because
“[t]here is no indication, that he was actively misled by the
defendant, that he was prevented from filing this petition, or
that he mistakenly filed in the wrong forum”, R&R at 6-7;
(y)

We agree, and Jones’s objections, which we

discussed above, do not convince us otherwise;

8

(z)

On August 9, 2013, Jones filed a second objection

in which he asserted a claim of actual innocence;
(aa) Though that objection was untimely, we will address
it here;
(bb) In his second objection, Jones argues that “a
convincing showing of actual innocence enable[s] habeas
petitioners to overcome a procedural bar to consideration on the
merits of their constitutional claims”, Second Pet. Obj. at 2;
(cc) Though it is true that a showing of actual
innocence enables a habeas petitioner to “have his otherwise
barred constitutional claims heard on the merits”, Herrera v.
Collins, 506 U.S. 390, 404 (1993), Jones misunderstands the
nature of the evidence required for a showing of actual
innocence;
(dd) As the Supreme Court explained in Herrera, “the
threshold showing” to pass through the procedural gateway “would
necessarily be extraordinarily high”, id. at 417, and in Schlup
v. Delo, 513 U.S. 298 (1995), the Supreme Court described the
Herrera standard as requiring that “new facts unquestionably
establish [petitioner’s] innocence”, id. at 317;
(ee) Here, Jones says that his
9

claim of actual-innocence comes from the only
eyewitness giving two different stories on the
description of the shooter during trial, in
which the description of the shooter fits the
description of the guy who lost the ring ‘ED’.
If petitioner[’s] trial counsel had spoke to
him before trial he would have been able to
present the petitioners alibi which places him
in the Southwest section of Philadelphia
during the time this crime was being
committed.
Second Pet. Obj. at 2;
(ff) Jones’s argument regarding the eyewitness evidence
introduced at trial does not constitute a new fact;
(gg) Furthermore, where Jones himself made the closing
argument to the jury, see N.T. 7/27/07 at 4, we see no reason why
he could not have presented his alibi argument to the jury during
his closing statement;
(hh) Neither Jones’s argument regarding the evidence
introduced at trial nor his unsupported allegation regarding his
alibi amount to new facts unquestionably establishing his
innocence;
(ii) As the Supreme Court recently emphasized in
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), “tenable actualinnocence gateway pleas are rare: ‘[A] petitioner does not meet
the threshold requirement unless he persuades the district court
10

that, in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt’”,
id. at 1928 (quoting Schlup, 513 U.S. at 329);
(jj) McQuiggin clarified that “a federal habeas court,
faced with an actual-innocence gateway claim, should count
unjustifiable delay on a habeas petitioner’s part, not as an
absolute barrier to relief, but as a factor in determining
whether actual innocence has been reliably shown”, id. at 1928;
(kk) Here, particularly in light of the five-year delay
between Jones’s sentencing and his assertion of an actual
innocence claim, and because that claim does not rest on new
facts unquestionably establishing his innocence, Jones has failed
to meet the standard for an actual-innocence gateway claim;
(ll) Finally, Local Appellate Rule 22.2 of the Rules of
the United States Court of Appeals for the Third Circuit provides
that “at the time a final order denying a habeas petition . . .
is issued, the district court judge will make a determination as
to whether a certificate of appealability should issue”;
(mm) Such a certificate should issue only if the
petitioner demonstrates that “reasonable jurists could debate”
whether the petition states a valid claim for the denial of a
11

constitutional right, Slack v. McDaniel, 529 U.S. 473, 484
(2000), and because the claims here were dismissed on procedural
grounds, Jones bears the additional burden of showing that
reasonable jurists would also debate whether the procedural
ruling was correct, id.; and
(nn) We do not believe that reasonable jurists could
debate the conclusion that Jones’s petition was not timely filed
and that neither statutory tolling nor equitable tolling were
warranted, and so we decline to issue a certificate of
appealability;
It is hereby ORDERED that:
1.

Petitioner’s objections (docket entries # 12 & 13)

are OVERRULED;
2.

Judge Hart’s April 2, 2013 report and

recommendation (docket entry # 11) is APPROVED and ADOPTED;
3.

For the reasons stated in (ee) above, we DECLINE to

issue a certificate of appealability; and

12

4.

The Clerk of Court shall CLOSE this case

statistically.
BY THE COURT:

/s/ Stewart Dalzell, J.

13