OTERO v. WARDEN, SCI DALLAS et al

Filing 9

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE MARK A. KEARNEY ON 6/7/17. 6/7/17 ENTERED AND COPIES E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANTHONY WILLIAM OTERO

CIVIL ACTION

v.
NO. 16-4643
WARDEN, SCI DALLAS, et al.

June 7, 2017

KEARNEY,J.
MEMORANDUM

Anthony William Otero petitions for habeas corpus relief under 28 U.S.C. §2254
claiming his state court sentence violates a newly recognized constitutional right. Following
referral, Chief Magistrate Judge Linda K. Caracappa recommended we summarily dismiss Mr.
Otero's petition as untimely. After considering Chief Magistrate Judge Caracappa's extensive
analysis and Mr. Otero's Objections, we adopt Chief Magistrate Judge Caracappa's Report and
Recommendation and dismiss Mr. Otero's habeas petition as barred by the statute of limitations.
Mr. Otero is not entitled to the statutory tolling or equitable tolling necessary to place his petition
within the strict one-year limitation, and his petition cannot be substantively reviewed.

I.

Background
Mr. Otero pied guilty to aggravated assault and three counts of possession with intent to

deliver a controlled substance. 1 On April 27, 2012, the state court sentenced Mr. Otero from six
years and seven months to thirteen years and two months' imprisonment. Mr. Otero' s sentence
became final on May 28, 2012. 2
On September 19, 2012, Mr. Otero timely sought review under the Pennsylvania PostConviction Relief Act ("Act"). 3 The state court dismissed Mr. Otero' s petition as meritless on

April 3, 2013. On July 2, 2014, Mr. Otero again sought review under the Act based this time on
Alleyne v. United States where the Supreme Court held facts increasing the statutory minimum

sentence for crime must be decided by a jury beyond a reasonable doubt. 4 The state court
dismissed Mr. Otero's claim as untimely on February 24, 2015, and on October 27, 2015, the
Pennsylvania Superior Court affirmed the dismissal. 5
II.

Analysis

On August 25, 2016, Mr. Otero asked this Court for habeas corpus review arguing his
state court sentence is illegal under Alleyne. 6 Mr. Otero claims he is entitled to tolling during
the processing of his second state petition and for the time the Supreme Court decided Alleyne
until the prison library made the opinion available to him. Chief Magistrate Judge Caracappa
found: (1) Mr. Otero's second state petition may not be statutorily tolled because of improper
filing; (2) Mr. Otero is not entitled to equitable tolling for the prison's failure to immediately
make Alleyne available in the prison library; and (3) Alleyne does not apply retroactively on
collateral review. We agree with the Chief Magistrate Judge.
A.

Alleyne is not retroactive on collateral review.

We cannot substantively review a petition for habeas corpus if it does not meet the
procedural standard of timeliness. 7

Mr. Otero cites the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA") exception for newly recognized constitutional rights, asserting
Alleyne is "made retroactive on collateral review." 8 As Chief Magistrate Judge Caracappa

found, the Supreme Court decided Alleyne after Mr. Otero's finalized sentence, and our court of
appeals directs, "a new rule is not 'made retroactive to cases on collateral review' unless the
Supreme Court holds it to be retroactive." 9 The Supreme Court will not make a holding
retroactive unless it announces a substantive rule placing "certain kinds of primary, private

2

individual conduct beyond the power of the criminal law making authority to prescribe" or it
contains "watershed rules of criminal procedure." 10 Our court of appeals directs Alleyne does
not announce a retroactive rule, " ... the rule of criminal procedure announced by the Supreme
Court in Alleyne does not apply retroactively to cases on collateral appeal. " 11
Mr. Otero objects to Chief Magistrate Judge Caracappa's Recommendation because our
court of appeals' holding regarding the retroactivity of Alleyne is "directly refuted by United
States Supreme Court precedent." 12 In Montgomery v. Louisiana, 13 the Court decided Miller v.
Alabama 14 announced a new substantive constitutional rule necessarily retroactive on collateral
review. 15 In Miller, the Court held mandatory life sentences without parole for juveniles violate
the Eighth Amendment as "cruel and unusual punishment." The Court explained the retroactivity
of substantive rules over procedural rules:
Even where procedural error has infected a trial, the resulting conviction or sentence may
still be accurate; and, by extension, the defendant's continued confinement may still be
lawful. For this reason, a trial conducted under a procedure found to be unconstitutional
in a later case does not, as a general matter, have the automatic consequence of
invalidating a defendant's conviction or sentence. 16
Mr. Otero's objection lacks merit. The Supreme Court has not made Alleyne retroactive,
and the rule in Alleyne dictates only the procedure a criminal defendant must face. Unlike Miller
where the age of the defendants provided the substantive element, Alleyne only mandates a jury
finding for each additional fact contributing to an increase of the statutory minimum sentence
and makes no reference to the status of the defendant or the crime alleged.
The statutory tolling exception applies only to those petitions "properly filed." 17 Our
court of appeals directs a petition is properly filed when it is "submitted according to the state's
procedural requirements, such as the rules governing the time and place of filing." 18 Mr. Otero's

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second state petition did not abide by the rules governing the time of filing, and he is barred from
statutory tolling while the claim processed.
B.

Mr. Otero is not entitled to equitable tolling.

Chief Magistrate Judge Caracappa properly held even if Alleyne applied retroactively and
Mr. Otero's second claim could be statutorily tolled, Mr. Otero's habeas review filed on August
25, 2016 still exceeded the strict one-year limitation. Mr. Otero argues the limitation period
should not begin until the prison library made Alleyne available on May 19, 2014 because the
prison's refusal to allow Mr. Otero access constituted an "impediment to filing an application
created by state action" entitling him to tolling until the library made the decision available. 19
Our court of appeals found lack of legal knowledge or training inadequate to entitle prisoners
proceeding pro se to equitable tolling. 20 The prison's delay in furnishing Mr. Otero with the
Alleyne decision represents a reality of prisoners' limited access to library materials rather than a

state-created impediment. Once Mr. Otero gained access to Alleyne, he still inexplicably waited
two years before filing this habeas petition. Mr. Otero has not demonstrated the untimeliness of
his petition resulted from an extraordinary circumstance justifying equitable relief.

III.

Conclusion
Chief Magistrate Judge Caracappa correctly held Mr. Otero is not entitled to statutory

tolling for his second state petition or to equitable tolling for library inadequacy. Mr. Otero's
one-year limitation period tolled only while his first state petition pended from September 19,
2012 to April 10, 2013. When the state court dismissed his first claim, Mr. Otero had until
December 17, 2013 to file a federal claim. This petition, filed on August 25, 2016, two years and

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eight months after the statute of limitations expired, is summarily dismissed as barred by the
procedural obstacle of timeliness.

1

Commonwealth v. Otero, (CP-48-CR-0002665-2001); Commonwealth v. Otero, (CP-48-CR0003862-2001).
2

Pa. R. Crim. P. 720(A)(3).

3

42 Pa. C. S. § 9541, et seq (1988).

4

Alleyne v. United States, 133 S. Ct. 2151 (2013)

5

See Commonwealth v. Otero, No. 775 EDA 2015 (Pa. Super. Oct. 27, 2015).

6

ECF Doc. No. 1, at p. 19.

7

Judge Caracappa describes the standard of review:
With respect to screening the instant petition, 28 U.S.C. § 2243 provides, in relevant
part:
A court, justice or judge entertaining an application for a writ of habeas corpus
shall forthwith award the writ or issue an order directing the respondent to show
cause why the writ should not be granted, unless it appears from the application
that the application or person detained is not entitled thereto.
28 U.S.C. § 2243. Moreover, under Rule 4 of the Rules Governing Section 2254 Cases,
28 U.S.C. § 2254, a district court is required to examine a petition prior to ordering an
answer and to summarily dismiss the petition if "it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the
district court." Dismissal without the filing of an answer or the state court record is
warranted "if it appears on the face of the petition that the petitioner is not entitled to
relief." Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 2000).

8

28 U.S.C. § 2244(d)(l)(C).

9

United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (quoting Tyler v. Cain, 533 U.S.
653, 663 (2001)).
10

Teague v. Lane, 489 U.S. 288, 303-304 (1989) (quoting Mackey v. United States, 401 U.S.
667, 693 (1971) (Harlan, J., concurring)).
11

United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014).

12

ECF Doc. No. 6, at p. 2.

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13

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), as revised (Jan. 27, 2016).

14

Miller v. Alabama, 567 U.S. 460 (2012).

15

Montgomery, 136 S. Ct. 718 at 736.

16

Id. at 730.

17

28

u.s.c. § 2244(d)(2).

18

Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998) (emphasis added); See also Artuz v.
Bennett, 531 U.S. 4, 6-7 (2000).
19

28 U.S.C. § 2243(d)(l)(B).

20

See e.g. Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir. 2013); Patrick v. Phelps, 764 F. Supp.
2d 669, 673 (D. Del. 2011) ("[L]imited access to the [prison's] law library and legal materials is
a routine aspect of prison life.")

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