Wise v. Rozum et al

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re 42 38 37 . Signed by Honorable Malachy E Mannion on 10/28/13. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Donald CAPERS, Petitioner,
v.
Jerome WALSH, et al., Respondents.
Civil Action No. 12–4780.
Oct. 5, 2012.
Donald Capers, Dallas, PA, pro se.
REPORT AND RECOMMENDATION
TIMOTHY R. RICE, United States Magistrate Judge.
*1 Petitioner Donald Capers, a prisoner at the State
Correctional Institution in Dallas, Pennsylvania, has filed
a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 (“Habeas Petition”). For the following
reasons, I recommend Caper's claims be denied with
prejudice as untimely.
FACTUAL AND PROCEDURAL HISTORY
On September 23, 1998, a jury convicted Capers of
second-degree murder, robbery, and possessing
instruments of a crime. See Commonwealth v. Capers,
CP–51–CR–807181–1997 (C.C.P.Phila.Co.), at 3–4
(“Criminal Docket”). The Philadelphia trial court then
sentenced Capers to life imprisonment, followed by
two-and-one-half to five years of imprisonment. See id.
The charges arose from the robbery of a store and the
murder of its owner, James Hurt. See Commonwealth v.
Capers, 1072 EDA 2001, Pa.Super. Apr. 23, 2002 Memo.
Op., at 2.
After having his appellate rights reinstated nunc pro
tunc, Capers appealed to the Superior Court in April 2001.
See Commonwealth v. Capers, 1072 EDA 2001, Appeal
Docket at 2. On April 23, 2002, the Superior Court
affirmed Capers' judgment of sentence, finding his claims
were waived because his counsel failed to file a Statement
of Matters Complained of on Appeal as required by

Pennsylvania Rule of Appellate Procedure 1925(b). See
April 2002 Super. Ct. Op. at 1–2. Capers did not seek
review of this decision from the Pennsylvania Supreme
Court.
On February 18, 2003, Capers filed a pro se petition
under Pennsylvania's Post Conviction Relief Act, 42
Pa.C.S. § 9541 et seq. (“PCRA”). See Criminal Docket at
5. Appointed counsel filed amended and supplemental
amended petitions, alleging: (1) Capers' trial counsel was
ineffective for failing to present three alibi witnesses at
trial; (2) Capers' appellate counsel was ineffective for
failing to raise trial counsel's ineffectiveness related to the
alibi witnesses; and (3) newly-discovered evidence based
on an affidavit from a prosecution witness, James
Daughtry, in which he recanted his trial testimony. See
Commonwealth v. Capers, 1405 EDA 2005, Pa.Super.
Feb. 14, 2006 Memo. Op. at 3; Mem. Law in Supp.
Petitioner's Fed. Habeas Corpus Pet. Pursuant to 28
U.S.C. § 2254 (“Capers' Bf.”) at 3.
On April 18, 2005, the PCRA court denied Capers'
petition without a hearing, finding: (1) Capers waived his
ineffectiveness claims by stating during an on-the-record
colloquy that he was satisfied with his attorney's
representation and he did not want to call any witnesses at
trial, and (2) Daughtry's affidavit did not warrant relief
because it contradicted itself and Daughtry's trial
testimony, which was likewise contradictory, was rejected
by the jury. See Feb. 2006 Super. Ct. Op. at 3, 6–7. The
Superior Court affirmed the PCRA court's decision on
February 14, 2006, and the Pennsylvania Supreme Court
denied Capers' petition for allowance of appeal on August
30, 2006. See id. at 1; Commonwealth v. Capers, 906
A.2d 538 (Pa.2006).
*2 Capers filed a second PCRA petition on January
17, 2007. See Commonwealth v. Capers, No. 133 EDA
2010, Pa.Super. Nov. 30, 2010 Memo. Op. at 1. On
December 24, 2009, the PCRA court denied the petition
as untimely. See id.; Criminal Docket at 11. While his
appeal to the Superior Court was pending, Capers filed an
application for remand of appeal to the trial court for

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review of newly discovered evidence based on an affidavit
from Alfred Bonaparte, in which Bonaparte states that
someone other than Capers murdered Hurt.FN1 See Nov.
2010 Super. Ct. Op. at 1; Capers' Bf. at 4–5, Ex. E.

Bonapart's affidavit is newly discovered evidence
of his innocence. See Capers' 6/30/2011 PCRA
Motion.
DISCUSSION

FN1. Bonaparte states in the affidavit that he was
present at the scene of Hurt's murder, although he
did not see the murder, a male named “Chuck”
killed Hurt, “Chuck” left the murder scene with
two people he does not know, he also does not
know Capers, but Capers was not at the murder
scene. See Capers' Bf., Ex E.
On November 30, 2010, the Superior Court affirmed
the denial of Capers' PCRA petition and denied without
prejudice Capers' application for a remand, allowing
Capers to file a new PCRA petition raising the issues in
his application. See id. at 1–2. On June 21, 2011, the
Supreme Court denied Capers' petition for allowance of
appeal from that decision. Commonwealth v. Capers, 611
Pa. 631, 23 A.3d 1054 (Pa.2011).
On June 30, 2011, Capers filed a third PCRA petition,
alleging newly discovered evidence based on Bonaparte's
affidavit and actual innocence. See Criminal Docket, at
12; Ex. A, Capers' 6/30/2011 Motion for Post Conviction
Relief, at 2–3. This petition remains pending before the
PCRA court. See Criminal Docket at 12.
On August 14, 2012, Capers filed his Habeas Petition,
claiming: (1) ineffective assistance of counsel for failing
to call three alibi witness: Erica Little, Tanya Capers, and
Rashan Berry; (2) his due process rights were violated
when the PCRA court failed to conduct an evidentiary
hearing regarding Daughtry's affidavit recanting his prior
testimony; and (3) ineffective assistance of trial, appellate,
and PCRA counsel for failing to investigate and interview
Bonaparte when he gave a statement to the police in
December 1995 identifying someone other than Capers as
Hurt's assailant.FN2 Capers also requests an evidentiary
hearing on the merits of his claims.
FN2. Capers' claim that counsel was ineffective
for failing to investigate Bonapart's police
statement is distinguishable from his claim
currently pending in his third PCRA petition: that

A. Timeliness
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) provides:
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;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
*3 28 U.S.C. § 2244(d)(1). Section 2244 further
provides that “[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.” Id. § 2244(d) (2).
Capers acknowledges his Habeas Petition is untimely
under Section 2244(d)(1)(A),FN3 but asserts it is timely
under Sections 2244(d)(1)(C) and 2244(d)(1)(D) because
he filed it within one year of the United States Supreme
Court's decision in Martinez v. Ryan, ––– U.S. ––––, 132

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S.Ct. 1309, 182 L.Ed.2d 272 (March 20, 2012).FN4 See
Capers' Bf., at 7–8.
FN3. Capers' judgment of sentence became final
on May 23, 2002, thirty days after the
Pennsylvania Superior Court affirmed his
sentence. See Gonzalez v. Thaler, ––– U.S. ––––,
––––, 132 S.Ct. 641, 656, 181 L.Ed.2d 619
(2012) (if direct review is not pursued to the
state's highest court, judgment becomes final
when time for seeking review in that court
expires); Pa. R.A.P. 1113(a) (petition for
allowance of appeal to Supreme Court shall be
filed 30 days after entry of Superior Court order).
The federal limitations period was tolled 271
days later, on February 18, 2003, when Capers
filed his first PCRA petition. See 28 U.S.C. §
2244(d)(2). The limitations period resumed on
August 31, 2006, the day after the Pennsylvania
Supreme Court denied Capers' petition for
allowance of appeal from the Superior Court
decision affirming the denial of his first PCRA
petition. See Lawrence v. Florida, 549 U.S. 327,
332, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007)
(habeas limitations period is tolled only when
state courts review the application). Capers'
federal limitations period expired 94 days later,
on December 3, 2006. The federal limitations
was not tolled when Capers filed his second
PCRA petition on January 17, 2008, because it
was found untimely and therefore was not
properly filed. See Pace v. DiGuglielmo, 544
U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669
(2005) (PCRA petition rejected as untimely was
not “properly filed” and, thus, did not trigger
statutory tolling under Section 2244(d)(2)).
Similarly, Capers' pending third PCRA petition
has no effect on the timeliness of his Habeas
Petition because a pending state petition cannot
toll an expired federal limitations period. Thus,
Capers is correct that his August 14, 2012
Habeas Petition is untimely because it was filed
more than five years after his federal limitations
period expired.
FN4. Although Capers also states in his brief that

his petition is timely under Section
2244(d)(1)(B), he does not identify a state
impediment that prevented him from timely filing
his petition. I also cannot identify any
impediment.
In Martinez, the Supreme Court recognized a “narrow
exception” to the rule that ineffective assistance of counsel
on collateral review does not constitute cause excusing a
procedural default. 132 S.Ct. at 1315. Pursuant to that
exception, “[i]nadequate assistance of counsel at
initial-review collateral proceedings may establish cause
for a prisoner's procedural default of a claim of ineffective
assistance at trial.” Id. Initial-review collateral
proceedings are “occasions which provide the first
occasion to raise a claim of ineffective assistance at trial.”
Id.
The Martinez decision does not render Capers' habeas
petition timely pursuant to either §§ 2244(d)(1)(C) or
2244(d)(1)(D). The narrow exception created by Martinez
applies only to procedurally-defaulted federal habeas
claims; Martinez did not address or otherwise allow for
the review of untimely claims. See 132 S.Ct. at 1315; see
also Stromberg v. Varano, No. 09–401, 2012 WL
2849266, at *5 n. 37 (E.D.Pa. July 11, 2012) (Martinez
exception does alleviate petitioner's burden to overcome
the AEDPA statute of limitations); Perez v. Williams, No.
12–605, 2012 WL 2389669, at *2 n. 1 (D. Nev. June 25,
2012) (“Nothing in the Martinez decision has any bearing
on the present timeliness inquiry.”); Arthur v. Thomas,
No. 01–983, 2012 WL 2357919, at *8–*10 (“Martinez
did not excuse petitioner's failure to comply with
AEDPA's limitations period....”); Yow v. Thaler, No.
10–0005, 2012 WL 2795850, at *2 (N.D.Tex. June 20,
2012) (“[T]he Martinez case is inapplicable to Petitioner's
statute of limitations issues.”).
The Supreme Court also emphasized that its Martinez
decision was an “equitable ruling,” not a constitutional
one. See 132 S.Ct. at 1319. Thus, Martinez does not create
an alternate start date for the statute of limitations under §
2244(d)(1)(C), which applies only where the Supreme
Court has recognized a new constitutional right. See
Adams v. Thaler, 679 F.3d 312, 323 n. 6 (5th Cir.2012).
Similarly, because the Supreme Court's decision in

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Martinez did not concern the facts underlying Capers'
federal habeas claims, it was not a factual predicate of his
claims that would permit the running of an alternate start
date under § 2244(d)(1)(D).FN5 See, e.g., Shannon v.
Newland, 410 F.3d 1083, 1089 (9th Cir.2005) (stating
“state-court decision establishing abstract proposition of
law arguably helpful to the petitioner's claim does not
constitute the ‘factual predicate’ for that claim”); Wilder
v. United States, No. 10–997, 2011 WL 3444178, *8
(W.D.Pa. Aug.8, 2011) (United States Supreme Court
decision relevant to petitioner's claims did not permit new
start date for limitations period under § 2255(f)(4) because
decision was not a fact in the case at issue).
FN5. The state court decisions and Capers' brief
also show that Capers was aware of the “vital”
facts underlying his federal habeas claims well
before his federal limitations period expired in
December 2006. See McAleese v. Brennan, 483
F.3d 206, 214 (3d Cir.2007) (holding §
2244(d)(1)(D) provides a petitioner with a later
accrual date “only if vital facts could not have
been known”); see also Feb. 2006 Super. Ct. Op.
at 3 (Capers raised ineffectiveness claim for
failure to present alibi witnesses in his initial pro
se 2003 PCRA petition and trial court denied
Capers' claim of newly discovered evidence
based on Daughtry's affidavit without an
evidentiary hearing in April 2005); Capers' Bf.,
at 20, 26 (Capers requested that both appellate
and PCRA counsel raise a trial counsel
ineffectiveness claim relating to failure to call
Bonaparte); id. at Ex. B (August 2004 letter from
Capers to PCRA counsel requesting that PCRA
counsel raise an ineffective assistance of counsel
claim based on prior counsels' failure to locate
and interview Bonaparte).
*4 Capers also is not entitled to an equitable tolling of
the AEDPA statute of limitations. The AEDPA statute of
limitations “ ‘can be tolled when principles of equity
would make [its] rigid application unfair.’ “ Urcinoli v.
Cathel, 546 F.3d 269, 272 (3d Cir.2008) (quoting
Shendock v. Dir. Office of Workers' Comp. Programs, 893
F.2d 1458, 1462 (3d Cir.1990)). Equitable tolling is
appropriate, however, only when a petitioner demonstrates

two elements: “ ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances
stood in his way’ and prevented timely filing.” Holland v.
Florida, ––– U.S. ––––, ––––, 130 S.Ct. 2549, 2562, 177
L.Ed.2d 130 (2010) (quoting Pace, 544 U.S. at 418); see
also Schlueter v. Varner, 384 F.3d 69, 75–76 (3d
Cir.2004). “[E]quitable tolling ‘may be appropriate if (1)
the defendant has actively misled the plaintiff, (2) if the
plaintiff has ‘in some extraordinary way’ been prevented
from asserting his rights, or (3) if the plaintiff has timely
asserted his rights mistakenly in the wrong forum.' “ Jones
v. Morton, 195 F.3d 153, 159 (3d Cir.1999) (quoting
United States v. Midgley, 142 F.3d 174, 179 (3d
Cir.1998)).
Capers does not point to any circumstance that prevented
him from filing a timely federal habeas petition after final
judgment was entered in his case on April 23, 2002 and
before the one-year AEDPA statute of limitations period
expired on December 3, 2006, see supra at 1–2, 5 n. 3.
Although Capers contends his claims would have been
deemed procedurally-defaulted under pre-Martinez law,FN6
see Capers' Bf. at 8, that law did not prevent him from
filing a timely federal habeas petition. See E.J.R.E. v.
United States, 453 F.3d 1094, 1098 (8th Cir.2006) (mere
fact that recent decision made it more likely that
“Appellants' collateral attack would be successful does not
change the reality that Appellants were free, at any time,
to file their Section 2255 petitions after final judgment”).
The Martinez decision also did not allow for equitable
tolling of the AEDPA deadlines. See Martinez, 132 S.Ct.
at 132 S.Ct. at 1315 (limiting decision to issue of whether
there was cause for prisoner's procedural default on
collateral review); Kingsberry v. Maryland, No. 12–1556,
2012 WL 2031991, at *1 (D.Md. June 4, 2012)
(“Martinez did not address equitable tolling in the context
of ineffective assistance of counsel and provides no relief
here.”); Peeples v. Citta, Nos. 11–6238, 12–2203, 2012
WL 1344819, at *6 n. 10 (D.N.J. Apr.16, 2012) (Martinez
does not provide a basis for equitable tolling). Thus, the
change in law created by Martinez did not stand in Capers'
way by preventing him from filing a timely federal habeas
petition to protect his rights, and Capers has not
demonstrated that equitable tolling of the AEDPA statute
of limitations is warranted. FN7

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FN6. Capers is incorrect that his first two federal
habeas claims would have been deemed
procedurally defaulted if raised before Martinez,
but now are reviewable under Martinez. Because
Capers raised these claims in connection with his
first PCRA petition, see supra at 2, they were not
procedurally defaulted by his PCRA counsel and,
thus, the narrow exception created by Martinez
does not apply to these claims. See Martinez, 132
S.Ct. at 1315 (exception only applies to
procedural default at initial review collateral
proceeding).
FN7. Capers also has not shown that he acted
diligently in pursuing his rights where he was
aware of the facts underlying his federal habeas
claims well before the federal limitations period
expired. See supra at 5, n. 3.
B. Evidentiary Hearing
A district court has discretion to grant an evidentiary
hearing if the petitioner meets the limitations of section
2254(e)(2).FN8 See Goldblum v. Klem, 510 F.3d 204,
220–21 (3d Cir.2007). The decision to hold an evidentiary
hearing should focus on whether the hearing would be
meaningful. See Campbell v. Vaughn, 209 F.3d 280, 287
(3d Cir.2000). A petitioner bears the burden of showing
“evidence beyond that already contained in the record”
that could be presented at an evidentiary hearing to help
his “cause,” or otherwise explaining how his “claim would
be advanced by an evidentiary hearing.” Id. An
evidentiary hearing also “is not required on issues that can
be resolved by reference to the state record.” Id. at 221
(quoting Schriro v. Landrigan, 550 U.S. 465, 474, 127
S.Ct. 1933, 167 L.Ed.2d 836 (2007)).
FN8. Under § 2254(e)(2), a federal court cannot
hold an evidentiary hearing unless the applicant
shows the claim relies on a new rule of
constitutional law or a factual predicate that
could not have been previously discovered, or
the applicant shows the “facts underlying the
claim would be sufficient to establish ... that but
for the constitutional error, no reasonable
factfinder would have found the applicant
guilty.” 28 U.S.C. § 2254(e)(2).

*5 Capers summarily requests an evidentiary hearing
in both his Habeas Petition and brief without explaining
how a hearing will advance his claims. As I have
discussed, the underlying state court decisions sufficiently
establish that Capers' Habeas Petition is untimely. Capers
does not demonstrate how a hearing will help him in
avoiding that conclusion.FN9 Because an evidentiary
hearing would not be meaningful, I deny Capers' request.
FN9. Although Capers attaches Bonaparte's
affidavit to his brief, that affidavit does not
address the timeliness of Capers' Habeas
Petition. See Capers' Bf., Ex. E.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 5th day of October 2012, it is
respectfully recommended that the petition for writ of
habeas corpus be DENIED with prejudice. It is further
recommended that there is no probable cause to issue a
certificate of appealability.FN10 The petitioner may file
objections to this Report and Recommendation within
fourteen days after being served with a copy. See Local
Civ. Rule 72.1. Failure to file timely objections may
constitute a waiver of any appellate rights. See Leyva v.
Williams, 504 F.3d 357, 364 (3d Cir.2007).
FN10. Because jurists of reason would not
debate my recommended disposition of the
petitioner's claims, a certificate of appealability
also should not be granted. See Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,
146 L.Ed.2d 542 (2000).
E.D.Pa.,2012.
Capers v. Walsh
Not Reported in F.Supp.2d, 2012 WL 5389513 (E.D.Pa.)
END OF DOCUMENT

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