TRAVWICK v. GARMAN et al

Filing 7

ORDERED THAT PETITIONER'S OBJECTIONS ARE OVERRULED IN PART AND SUSTAINED IN PART AS OUTLINED HEREIN; THE PETITION FOR WRIT OF HABEAS COPRUS IS DENIED AND THE CLERK OF COURT IS DIRECTED TO CLOSE THIS CASE FOR STATISTICAL AND ALL PURPOSES; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/18/18. 9/19/18 ENTERED AND COPIES MAILED TO PRO SE PETITIONER.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID TRAVWICK,
Petitioner,
v.
SUPT. MARK GARMAN, et al.,
Respondent.

Jones, II

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CIVIL ACTION
NO.: 17-3539

J.

September 17, 2018
ORDER-MEMORANDUM

AND NOW, this 17th day of September, 2018, upon consideration of Petitioner’s 28
U.S.C. § 2254 Petition for Writ of Habeas Corpus (ECF No. 1), the Report and Recommendation
prepared by United States Magistrate Judge David R. Strawbridge (ECF No. 3), and Petitioner’s
Objections thereto (ECF No. 5), it is hereby ORDERED as follows:
1. Petitioner’s Objections (ECF No. 5) are OVERRULED in part
and SUSTAINED in part as outlined herein.
2. Petitioner’s Objections (ECF No. 5) are OVERRULED as it
relates to Objections One through Six, and SUSTAINED as it
relates to Objection Seven.
3. The Report and Recommendation (ECF No. 3) is APPROVED
and ADOPTED as it relates to Sections I, II(A), and II(B).
4. Section II(C) of the Report and Recommendation is hereby
STRICKEN.
5. Petitioner’s § 2254 Petition for Writ of Habeas Corpus (ECF
No. 1) is DENIED. The Clerk of Court is directed to CLOSE
the above-referenced matter for statistical and all purposes.
6. There is no probable cause to issue a certificate of
appealability.

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RELEVANT BACKGROUND
Petitioner does not object to the magistrate court’s recitation of the relevant factual and
procedural background, 1 which was largely fashioned based upon the facts and proofs provided
by Petitioner is his §2254 Petition. As such, and upon independent verification of the record, this
Court adopts the following facts as authored by Judge Strawbridge.
On January 31, 2003, Travwick was charged with murder, reckless
endangerment, and related charges for an incident that occurred on
October 30, 2002. He agreed to waive his right to a jury and proceeded to
a bench trial before the Honorable M. Teresa Sarmina on June 15, 2004.
The court found him guilty of one count of murder in the third-degree, two
counts of recklessly endangering another person, and one count of
possessing an instrument of crime, and found him not guilty of two counts
of simple assault. Following a pre-sentence investigation, the court
sentenced Travwick on September 15, 2004 to a term of imprisonment of
15 to 40 years on the murder conviction and a consecutive term of five
years of probation on the PIC conviction. The court also imposed
sentences of two years of probation on the two REAP convictions to be
served concurrently with the other sentences. (CP Dkt. at 1, 4, 10-21;
Super. Ct. Opin., 5/31/17, at 1.)
Travwick filed a direct appeal with new counsel but that attorney later
sought to withdraw. On November 28, 2005, the Superior Court granted
the withdrawal request and affirmed Travwick’s judgment of sentence.
(CP Dkt. at 21-22; Appeal Dkt., No. 2658 EDA 2004, at 1-3; Super. Ct.
Opin., 5/31/17, at 1-2.) Travwick did not seek further review in the
Pennsylvania Supreme Court.
Thereafter, Petitioner sought review in the state courts through a series
of petitions under the Post Conviction Relief Act, 42 Pa. Cons. Stat. §§
9541-46 (“PCRA”). The first was filed on or about February 8, 2006 and
later amended by counsel. Following a hearing, however, the PCRA Court
concluded that “Petitioner did not meet his burden on [the] ineffectiveness
allegation” he raised and dismissed the petition on May 30, 2007. (CP
Dkt. at 27.) Travwick appealed the dismissal, but the Superior Court
affirmed. Travwick’s petition for allowance of appeal was denied on June
1, 2009. (CP Dkt. at 24-30; Appeal Dkt., No. 1623 EDA 2007, at 1-4;
Alloc. Dkt., No. 1 EAL 2009.)
During the pendency of the appeal of his first PCRA petition,
Travwick filed another PCRA petition on or about March 18, 2009.
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The first of Petitioner’s objections is entitled “Petitioner Objects to Court[’]s Procedural Background”
but in the discussion that follows, Petitioner verifies the Magistrate Court’s recitation of the specified
facts. It is apparent to this Court that by said section, Petitioner only challenges the Magistrate Court’s
decision to exclude Petitioner’s substantive claims for relief from its recitation of the relevant procedural
facts.

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Counsel was appointed but filed a Finley letter on April 22, 2010. The
PCRA Court gave notice of its intent to dismiss the petition, to which
Travwick filed a response, but the court proceeded to dismiss the petition
on the ground that it was untimely. Travwick appealed and secured a
remand from the Superior Court for the appointment of counsel and leave
to file an amended petition, which he filed on December 16, 2011. The
PCRA Court was not persuaded by the amended petition. After giving
notice of its intent to again dismiss, and despite a response by Travwick,
the court again dismissed the second PCRA petition, as amended, finding
there to be “no issues of arguable merit.” (CP Dkt. at 35 (June 29, 2012).)
Still represented by his appointed counsel, Travwick filed a notice of
appeal of this dismissal, but the Superior Court affirmed and on April 16,
2014 the Pennsylvania Supreme Court denied allowance of appeal. (CP
Dkt. at 30-38; Appeal Dkt., No. 1938 EDA 2010, at 1-3; Appeal Dkt., No.
2154 EDA 2012, at 1-3; Alloc. Dkt., No. 616 EAL 2013.)
More than a year later, on or about August 13, 2015, Travwick
initiated a third PCRA action, raising “sentencing issues” and citing to
Commonwealth v. Hopkins, 98 MAP 2013 (Pa. June 15, 2015). (Pet. at 4.)
The PCRA Court again gave notice of its intent to dismiss the petition.
Travwick filed a response, but on May 20, 2016, the PCRA Court ordered
the petition “dismissed as untimely and as failing to satisfy any of the
enumerated exceptions” to the jurisdictional requirements of 42 Pa. Cons.
Stat. § 9545(b). (CP Dkt. at 38.) Travwick again appealed to the Superior
Court, presenting to that court the question of whether “Appellant’s
sentencing statute” was unconstitutional in light of recent United States
Supreme Court cases concerning the constitutionality of mandatory
minimum sentences. Commonwealth v. Travwick, No. 1728 EDA 2016,
slip op. at 2 (Pa. Super. Ct. May 31, 2017) [appended to petition, Doc. 1].
The Superior Court agreed that his petition was untimely and that his
apparent attempt to invoke a statutory exception for newly-recognized
constitutional rights was inapposite, as he did not receive a mandatory
minimum sentence and thus was not affected by any changes in the law in
that area. The court affirmed the dismissal of his petition on May 31,
2017. Travwick did not seek allowance of appeal in the Pennsylvania
Supreme Court. (CP Dkt. 38-40; Appeal Dkt., No. 1728 EDA 2016, at 1-4;
Pet. at Ex. A.)
Petitioner completed this district’s standard form for habeas relief
pursuant to 28 U.S.C. § 2254 on August 3, 2017, following the conclusion
of litigation of his third PCRA action. (Pet. at 16.)
(ECF No. 3, pp. 2-5).
Judge Strawbridge recommended summary dismissal of Petitioner’s § 2254 Petition,
without hearing and without ordering briefing from Respondents. (ECF No. 3, p. 15) Petitioner
timely filed objections to the Report and Recommendation (“R&R”), which this Court considers

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herein. For the brief reasons that follow, this Petitioner’s Objections are overruled in part and
sustained in part, and Petitioner’s § 2254 Petition for Writ of Habeas Corpus is denied.
I.

Propriety of Summary Dismissal
As an initial matter, the Court notes the propriety of summary dismissal, here. A district

court can summarily dismiss a habeas corpus petition if it “plainly appears from the face of the
petition that the petitioner is not entitled to relief.” 28 U.S.C. § 2254 Cases R 4; see e.g. Lonchar
v. Thomas, 517 U.S. 314, 320 (1996); Harrison v. Schultz, 285 F. App'x 887, 889 (3d Cir. 2008).
Upon review of Petitioner’s § 2254 Petition, Judge Strawbridge found the Petition to be facially
deficient and as such, neither required Respondent to formally respond thereto nor required
either parties’ participation in a hearing on the Petition’s merits. (ECF No. 3, p. 7.) Having
thoroughly reviewed all documents of record, the Court agrees that even without argument from
the Government, it is apparent that Petitioner is not entitled to relief.
Upon review of the factual record and pursuant to Section 2254(d)(1) of the
Antiterrorism and Effective Death Penalty Act of 1966 (“AEDPA”), absent statutory or equitable
tolling, Petitioner’s § 2254 Petition should have been filed within one year of December 28,
2005 – the date on which final judgment in Petitioner’s criminal matter became final. The
AEDPA’s one-year statute of limitations for habeas corpus filings is subject to two tolling
exceptions: (1) statutory tolling during the time a “properly filed” application for state postconviction review is pending in state court; and (2) equitable tolling, a judicially crafted
exception. Jones v. Morton, 195 F.3d 153, 158 (3d Cir.1999). Where a petitioner avails himself
of state post-conviction remedies or other collateral review, any running of the AEDPA statutory
period is tolled from the time the post-conviction procedure is initiated until the reviewing court
enters final judgment thereupon. 28 U.S.C. § 2244(d)(2). Thus as discussed by Judge
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Strawbridge at length in the Report and Recommendation, (ECF No. 3, pp. 11-12), Petitioner’s
numerous PCRA filings tolled the running of the AEDPA one-year period from February 8, 2006
through April 16, 2014.
As of April 16, 2014, Petitioner had 323 days remaining in his AEDPA one-year
limitations period, so that his § 2254 Petition would have had to be filed by March 5, 2015 to be
timely. Petitioner’s § 2254 Petition was not filed until over two years later, on August 7, 2017.
(ECF No. 1.) As there is no apparent factual basis to support equitable tolling of the limitations
period beyond April 16, 2014, Petitioner’s § 2254 Petition is wholly untimely.
II.

Objections
Having found that summary dismissal is proper here, the Court turns to Petitioner’s

outstanding objections. Petitioner purports to raise seven objections to the R&R, but nearly all of
Petitioner’s “objections” reflect an attempt to further argue the substantive merits of the § 2254
Petition rather than challenge the bases for Judge Strawbridge’s recommendation that the
Petition be dismissed as untimely. Despite the foregoing, the Court nonetheless considers each of
Petitioner’s objections in turn.
The first of Petitioner’s objections challenges the Magistrate Court’s failure to
comprehensively address Petitioner’s substantive request for relief. (ECF No. 5, p. 1). As
addressed above, Petitioner’s § 2254 Petition was filed two and a half years out of time. As such,
Petitioner’s § 2254 Petition is properly dismissed without substantive review. Petitioner’s first
objection is overruled.
As with the first of Petitioner’s objections, in the second objection, Petitioner challenges
the decision of the Magistrate Court to rule on Petitioner’s Motion without the “complete” state
court record and sentencing transcripts. (ECF No. 5, p. 1.) Because summary dismissal of the §

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2254 is proper, Judge Strawbridge was not required to consider the trial or sentencing documents
from Petitioner’s state criminal case. Petitioner’s second objection is also overruled.
Petitioner’s third objection challenges – once again – Judge Strawbridge’s alleged
“reliance on an inadequate record,” and presents argument on the substantive merits of the
underlying Petition. (ECF No. 5, p. 1.) For the reasons previously stated, this objection is also
overruled.
In the fourth of Petitioner’s objections, Petitioner maintains that his § 2254 Petition was
timely filed. (ECF No. 5, p. 2.) As discussed above, the Court finds otherwise. Petitioner’s fourth
objection is overruled.
In Petitioner’s fifth objection, Petitioner contends that Judge Strawbridge relied on an
inadequate record and erroneously found Petitioner’s § 2254 Petition to be time barred. (ECF
No. 5, p. 2.) As stated above, the Court independently reviewed the factual record and
independently conducted its own assessment of the applicable procedural timelines and
limitations period. Based thereupon, the Court finds that Judge Strawbridge’s assessment of the
Petition’s untimeliness proper. Petitioner’s fifth objection is therefore overruled.
The Court interprets Petitioner’s sixth objection to be a challenge to Judge Strawbridge’s
calculation of the extent to which Petitioner’s PCRA filings tolled the AEDPA’s statute of
limitations. As stated above, the Court finds that Petitioner’s PCRA filings tolled the one-year
period imposed by the AEDPA from February 8, 2006 until April 16, 2014. Having
independently confirmed the accuracy of Judge Strawbridge’s calculations, the Court overrules
Petitioner’s sixth objection.
Petitioner’s final objection challenges Judge Strawbridge’s finding that Petitioner’s
claims were substantively without merit. (ECF No. 5, p. 2.) The Court sustains Petitioner’s

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seventh and final objection. Judge Strawbridge’s conclusion that Petitioner’s § 2254 Petition is
untimely prohibits review on the merits. 2 Petitioner’s seventh objection is thus sustained and
Section II(C) of the R&R is hereby stricken. Ultimately, the untimeliness of the § 2254 Petition
is dispositive, and prohibits review on the merits.
CONCLUSION
The Court finds that Petitioner’s 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus is
untimely, and overrules all but one of Petitioner’s objections to the Report and Recommendation
authored by United States Magistrate Judge David R. Strawbridge. The Court strikes Section II
(C) of Judge Strawbridge’s Report and Recommendation and approves and adopts all sections
that remain thereof. Because Petitioner fails to establish that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), this Court finds no probable cause upon
which to issue a certificate of appealability.

BY THE COURT:
/s/ C. Darnell Jones, II
C. DARNELL JONES, II

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J.

The Court recognizes that a viable claim of actual innocence could allow the Court jurisdiction to
consider the merits of an untimely habeas petition, but nothing in the record indicates that Petitioner
intended to advance an actual innocence claim.

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