Hollenback v. Clark et al

Filing 25

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID HOLLENBACK, JR.,
Petitioner,
v.
SUPERINTENDENT CLARK, PA
STATE ATTORNEY GENERAL,
Respondents.

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1:17-cv-0721
Hon. John E. Jones III

MEMORANDUM
November 28, 2017
David Hollenback, Jr., (“Hollenback” or “Petitioner”) filed the instant
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 24,
2017. (Doc. 1). Following initial review, the Court ordered Respondents to
address the issue of the timeliness of the petition. (Doc. 8). After being granted
two enlargements of time, Respondents filed their brief on October 31, 2017.
(Docs. 12, 14, 15, 17, 18). Hollenback filed a “response” on November 16, 2017.
(Doc. 19).
The issue of the timeliness of the petition is ripe for disposition. For the
reasons that follow, the petition will be dismissed as untimely.
I.

BACKGROUND
The following relevant state court background is extracted from the August

19, 2016 opinion of the Superior Court of Pennsylvania:

Appellant, David James Hollenback, Jr., appeals from the order
dismissing his petition pursuant to the Post Conviction Relief Act
(“PCRA”) as untimely. We conclude that the PCRA court correctly
found that it lacked jurisdiction to entertain Hollenbeck’s petition and
that none of Hollenback’s arguments to the contrary entitle him to
relief. We affirm.
***
After a bench trial, Hollenback was convicted of multiple counts
arising from the sexual abuse of a minor relative. The trial court
imposed a sentence of imprisonment of 38 to 76 years. This Court
subsequently affirmed the judgment of sentence and the Supreme
Court of Pennsylvania denied allowance of appeal on September 17,
2012.
Over two years later, on February 17, 2015, Hollenback filed the
instant PCRA petition pro se. Counsel was appointed to represent
him and, after a hearing, the PCRA court dismissed the petition as
untimely. This timely appeal followed.
On appeal, Hollenback concedes that his petition was facially
untimely. See Appellant’s Brief, at 14. However, he contends that he
qualifies for the newly discovered fact exception to the PCRA’s
timebar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). The fact upon which he
relies is the Supreme Court of the United States’ decision in Alleyne v.
United States, 133 S.Ct. 2151 (2013). He asserts that since he was
incarcerated at the time, he did not discover Alleyne until February 4,
2015. He thus contends that his petition, filed approximately two
weeks later, satisfies the 60 day window of 42 Pa.C.S.A. § 9545(b)(2).
It does not.
Decisional law, such as Alleyne, is not a “fact” under section
9545(b)(1)(ii). See Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.
2011); Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super.
2012).
Furthermore, our Supreme Court recently held that “Alleyne does not
apply retroactively to cases pending on collateral review….”
2

Commonwealth v. Washington, — A.3d —, — , 2016 WL 3909088,
*8 (Pa., filed July 19, 2016).
Hollenback has failed to establish the applicability of an exception to
the PCRA’s time bar, and the PCRA court correctly found that it had
no jurisdiction to entertain his petition. This Court has soundly
rejected Hollenback’s arguments that Pennsylvania courts always
retain jurisdiction to strike an illegal sentence.
See, e.g.,
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014)
(“[T]hough not technically waivable, a legality [of sentence] claim
may nevertheless be lost should it be raised . . . in an untimely PCRA
petition for which no time-bar exception applies, thus depriving the
court of jurisdiction over the claim.”).
Order affirmed.
(Doc. 24-1, pp. 3-5). According to the electronic docket sheet found at
https://ujsportal.pacourts.us, Hollenback filed a Petition for Allowance of Appeal
in the Supreme Court, which was denied on April 3, 2017.
Hollenback filed the instant federal habeas petition on April 24, 2017,
seeking relief on five grounds. (Doc. 1, pp. 6-15, 19, 20).
II.

DISCUSSION
The court shall “entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely
filed under the stringent standards set forth in the Anti-Terrorism and Effective
3

Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (Apr.
24, 1996). See 28 U.S.C. § 2244(d) (1). Specifically, a state prisoner requesting
habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that
provides, in relevant part, as follows:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment
of a State court. The limitation period shall run from the latest of–
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
...
(2) The time during which a properly filed application for State postconviction 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)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).
Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment
does not become final until appeals have been exhausted or the time for appeal has
expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
Hollenback’s judgment of sentence became final on December 16, 2012,
ninety days after the conclusion of his direct appeal. The one-year statute of
limitations period commenced running as of that date and expired one year later.1

1

To the extent that Hollenback relied on the Alleyne decision in the context of the untimely filing
of his PCRA petition, Alleyne does not provide an alternative statute of limitations start date.
When the Supreme Court announces a new rule of law, it generally applies retroactively only to
4

Hence, the present petition, filed on April 24, 2017, is patently untimely, unless
statutorily or equitably tolled.
1.

Statutory Tolling

Section 2244(d)(2) tolls the one-year statute of limitations with respect to the
“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.” 28
U.S.C. § 2244(d)(2). The Third Circuit Court of Appeals has defined “pending” as
the time during which a petitioner may seek discretionary state court review,
whether or not such review is sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir.
2000).
Hollenback filed his first PCRA petition on February 7, 2015. (Doc. 24-1, p.
4). However, it did not operate to toll the statute. The state courts found his
PCRA to be untimely under the state statute of limitations and concluded that he
had not established an exception to the timeliness requirements based on Alleyne.
(Id. at pp. 4, 5). An untimely PCRA petition is not considered “properly filed”
under section 2244(d)(2), and therefore does not statutorily toll the limitations

cases on direct appeal, and applies to finalized convictions only “in limited circumstances.”
United States v. Reyes, 755 F.3d at 212-13 (quoting Schriro v. Summerlin, 542 U.S. 348, 351-52
(2004)). In Reyes, the Third Circuit found that although Alleyne set out a new rule of law, it is
not retroactively applicable to cases in which the conviction is already final. Reyes, 755 F.3d at
212-13. Accordingly, the applicable starting date for the AEDPA statute of limitations is the date
on which Petitioner’s judgment became final.
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period. 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).”) (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)).
Additionally, a PCRA petition cannot toll the statute of limitations where, as here,
it is filed after the expiration of the federal habeas limitations period. See Long v.
Wilson, 393 F.3d 390, 395 (3d Cir. 2004) (finding that petitioner’s untimely PCRA
petition did not statutorily toll the limitations period because the federal habeas
time limitations expired prior to the filing of the petition). Consequently,
Hollenback is not entitled to statutory tolling.
Equitable Tolling
“Equitable tolling of the limitations period is to be used sparingly and only
in “extraordinary” and “rare” circumstances. See Satterfield v. Johnson, 434 F.3d
185, 195 (3d Cir. 2006); LaCava v. Kyler, 398 F.3d 271, 274-75 (3d Cir. 2005). It
is only in situations “when the principle of equity would make the rigid application
of a limitation period unfair” that the doctrine of equitable tolling is to be applied.
See Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003). Generally, a litigant
seeking equitable tolling must establish two elements: (1) that he has been
pursuing his rights diligently; and (2) that some extraordinary circumstance stood
in his way.” Pace, 544 at 418.
6

With respect to the diligent pursuit of rights, he must demonstrate that he
exercised reasonable diligence in investigating and bringing the claims. Holland v.
Florida, 560 U.S. 631, 653 (2010); see also Robinson v. Johnson, 313 F.3d 128,
142 (3d Cir. 2002). Mere excusable neglect is not sufficient. See LaCava, 398
F.3d at 276. Moreover, “the party seeking equitable tolling must have acted with
reasonable diligence throughout the period he seeks to toll.” Warren v. Garvin,
219 F.3d 111, 113 (2d Cir. 2000) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d
Cir. 2000)). Importantly, the diligence requirement “does not pertain solely to the
filing of the federal habeas petition, rather it is an obligation that exists during the
period [petitioner] is exhausting state court remedies as well.” LaCava, 398 F.3d
at 277) (citing Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999).
Extraordinary circumstances have been found where (1) the respondent has
actively misled the petitioner, (2) the petitioner has in some extraordinary way
been prevented from asserting his rights, (3) the petitioner has timely asserted his
rights mistakenly in the wrong forum, see Jones, 195 F.3d at 159, or (4) the court
has misled a party regarding the steps that the party needs to take to preserve a
claim, see Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). Even where
extraordinary circumstances exist, “[i]f the person seeking equitable tolling has not
exercised reasonable diligence in attempting to file after the extraordinary
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circumstances began, the link of causation between the extraordinary
circumstances and the failure to file is broken, and the extraordinary circumstances
therefore did not prevent timely filing.” Brown v. Shannon, 322 F.3d 768, 773 (3d
Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Hollenback failed to exercise reasonable diligence throughout the limitations
period and proffers no explanation other than writing in the “Timeliness of
Petition” section of his habeas petition, “Miscarriage of Justice; Equitable
Tolling.” (Doc. 1, p. 17). He allowed approximately 783 days to pass between the
date on which his Judgment of Sentence became final and the filing of his first
PCRA petition.
With regard to his state court argument, that his incarceration impaired his
ability to discover the Alleyne decision and, thus, bring a timely PCRA, the Third
Circuit and district courts within this circuit have found this argument to be wholly
without merit in the context of equitable tolling. See Ross v. Varano, 712 F.3d
784, 799-800 (3d Cir. 2013) (finding that a prisoner proceeding pro se is not
insulated from “reasonable diligence” inquiry and lack of legal knowledge or
training does not alone justify equitable tolling); Carter v. Pierce, 196 F. Supp.3d
447, 455 (D. Del. 2016); Patrick v. Phelps, 764 F. Supp. 2d 669, 673 (D. Del.
2011) (stating “[L]imited access to the [prison’s] law library and legal materials is
8

a routine aspect of prison life [that does not warrant equitable tolling]”); Otero v.
Warden, SCI Dallas, No. 16-4643, 2017 WL 2470639, at *4 (E.D. Pa. Jan. 31,
2017).
Moreover, there is no indication that he was actively misled, that he was in
some extraordinary way prevented from asserting his rights, that he timely asserted
his rights mistakenly in the wrong forum or that he was misled by the state court
regarding the steps that he needed to take to preserve his claims. In his petition he
states that counsel either did not, or refused to, raise certain issues, and in his
“Response” he argues that the statute of limitations is irrelevant due to the
“Commonwealth’s deliberate hijack/lynching of Judicial Process and Due Process
Rights of your Petitioner, for the sole purpose of securing Petitioner’s conviction.”
(Doc. 1, pp. 6, 8, 11, 13-15; Doc. 19, p. 1). He attacks the refusal of PCRA
counsel to raise certain issues, the criminal investigation of the charges brought
against him, the manner in which evidence was garnered, the bench trial
proceedings, and the sentence. (Doc. 19, p. 2). None of this, however,
demonstrates the presence of circumstances beyond his control that prevented him
from complying with the state court PCRA deadlines or the federal habeas statute.
Hence, equitable tolling of the AEDPA statute of limitations is not warranted in
this case.
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III.

CONCLUSION
For the reasons set forth above, the petition for writ of habeas corpus will be

dismissed as untimely.
IV.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003).
“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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of

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reason would not find the procedural disposition of this case debatable.
Accordingly, no COA will issue.
An appropriate Order will enter.