Love v. PA State Attorney General et al

Filing 38

MEMORANDUM re REPORT AND RECOMMENDATIONS 33 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 2/21/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TYSHAUNT LOVE,
Plaintiff,
v.
MARIROSA LAMAS, et al.,
Respondents.

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Civil No. 1:13-cv-456

Judge Sylvia H. Rambo
Magistrate Judge Carlson

MEMORANDUM
Before the court is a report and recommendation in which the magistrate
judge recommends that Tyshaunt Love’s petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 be dismissed as untimely. (Doc. 33.) Love has filed
objections to the report and recommendation. (Doc. 37.) For the reasons that
follow, the report and recommendation will be adopted.
I.

Background
Love is an inmate in the custody of the Pennsylvania Department of

Corrections, serving a sentence after being convicted of killing his girlfriend, Iris
Fennell. Love was sentenced on October 28, 2005. (Doc. 10, Ex. A 15, Docket of
Court of Common Pleas, No. CP-22-CR-0000937-2002; Doc. 33, p. 7.)
The magistrate judge very thoroughly examined the course of Love’s
direct and collateral appeal and determined that the undisputed state records show
that 540 days of non-tolled time expired before Love filed this instant action, and

therefore this petition was filed past the one-year statutory bar. Love does not
question that his petition was filed late but asserts that equitable tolling applies
because he has new evidence that he is actually innocent of Fennell’s murder.
II.

Discussion
The magistrate judge examined the case law on equitable tolling and

actual innocence claims. McQuiggin v. Perkins, --- U.S. ---, 133 S. Ct. 1924, 1931
(2013); Schlup v. Delo, 513 U.S. 298 (1995). An actual innocence claim requires
the court to consider two factors: 1) whether the petitioner has “supported his
allegations of

constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial,” Schlup, 513 U.S. at 324; and
(2) whether the petitioner has shown that it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence, id. at 33132.
The magistrate judge examined the first criteria, i.e., whether Love
presented new evidence. Love presents arguments that witness Cruz’s testimony
was incredible and subject to attack. This issue was presented to the Pennsylvania
Superior Court and thoroughly discussed by that court. The claim that Cruz’s
testimony was inconsistent was known to Love and is not new evidence.

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Love also argues that precluded evidence showing similarities between
the rape of Vanessa Ames, by another, and the events surrounding the murder of
Fennell would have shown his actual innocence. However, this is not new evidence
as the issue was raised at trial and on appeal to the Superior Court of Pennsylvania.
Both courts addressed the issue and found against Love’s arguments.
To get around the assessment that he has not presented “newly
discovered” evidence, Love argues that case law supports the fact that “newly
presented evidence” (evidence that was not presented to the trial court) qualifies
for consideration of equitable tolling. (Doc. 37, ¶ 7). He cites to United States v.
Davies, 394 F.3d 182 (3d Cir. 2004). In that case, the court made the following
statement: “We need not weigh in today on the ‘newly presented’ versus ‘newly
discovered’ issues because . . . we write in the context of a claim that a postconviction Supreme Court decision has held that the statute of conviction does not
reach the petitioner’s conduct.” Id. at 191 n.4. The Davies case concerned conduct
of a defendant that was subsequently found not to be a crime because of a change
in a criminal statute that did not cover the defendant’s alleged conduct.
The facts of the Davies case are different from Love’s and the Third
Circuit did not address the issue of “newly presented” evidence.
Having decided that the issues raised do not arise to newly discovered
evidence, which this court adopts, Love is not entitled to equitable tolling and
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therefore this court does not have jurisdiction. That being so, the magistrate judge
and this court do not have jurisdiction to address issues such as witness
confrontation, speedy trial, ineffective assistance of counsel, etc. (Doc. 37, ¶ 10.)
The report and recommendation will be adopted.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: February 21, 2017

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