Lang v. Mazurkiewicz et al

Filing 11

MEMORANDUM AND ORDER: It is hereby ORDERED that:1.Respondents Motion to Dismiss (Doc. 8) is GRANTED.2.The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED as time barred. 3.A certificate of appealability is DENIED. 4.The Clerk of Court shall close this case. Signed by Honorable A. Richard Caputo on 4/3/14 (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEPHEN ROBERT LANG,
Petitioner
v.
JOSEPH MAZURKIEWICZ, et al.,
Respondents

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CIVIL NO. 3:CV-13-0957
(Judge Caputo)

MEMORANDUM
I.

Introduction
On April 10, 2013, Stephen R. Lang filed this pro se petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 challenging his 2010 guilty plea convictions in
the Court of Common Pleas of Dauphin County, Pennsylvania, for various sex
offenses against minors.1 (Doc. 1, Pet.) Respondents filed a Motion to Dismiss
and/or a Partial Answer to the Petition claiming that it is time barred. (Doc. 8, Mot.
to Dismiss). Although given the opportunity to reply to the Respondents’ charge that
his Petition is untimely, Mr. Lang failed to oppose the motion.
For the reasons that follow, the Petition will be dismissed as untimely. See
28 U.S.C. § 2244(d).

1

The Court takes judicial notice of the trial court’s docket sheets in Commonwealth
v. Lang, No. CP-22-CR-0002989-2008, No. CP-22-CR-0002991-2008, and No. CP-22-CR0002992-2008 available via Pennsylvania’s Unified Judicial Docket System docket research
at: http://ujsportal.pacourts.us.

II.

Background
The following background has been extracted from the Pennsylvania

Superior Court’s November 8, 2012 Opinion affirming the trial court’s denial of Mr.
Lang’s petition for collateral review filed pursuant to Pennsylvania’s Post Conviction
Relief Act (PCRA), 42 PA. CON . STAT . ANN . §§ 9541, et seq.
On March 16, 2010, Lang was sentenced to an aggregate
term of imprisonment of 5 to 10 years following a guilty plea
to charges that he provided alcohol to, and had intercourse
with, his 18 year old daughter, combined with a plea of nolo
contendere to charges arising from allegations that he had
supplied marijuana and alcohol to, and digitally penetrated,
his daughter’s 17 year old friend. Lang did not file an
appeal for his judgment of sentence; rather, he filed a pro
se motion to withdraw [his] guilty plea based upon
allegations of ineffectiveness of plea counsel. Lang’s
appointed counsel was permitted to withdraw, and Lang’s
motion to withdraw his guilty plea was denied on November
18, 2010.
Lang filed the instant, pro se, petition on June 20, 2011.
On November 2, 2011, the PCRA court dismissed Lang’s
petition and granted Lang’s counsel’s petition to
withdraw. This timely pro se appeal followed.
...
Here, as noted above, Lang’s petition was filed on June 20,
2011, more than one year after April 15, 2010, when Lang’s
right to a direct appeal from his sentence expired, As such,
it is patently untimely. Furthermore, Land does not argue
in his appellate brief in favor of the application of any of the
timeliness exceptions.2 As such, we conclude that Lang’s

2

Land does include a boilerplate assertion of after discovered
evidence in his petition. However, even read in context with
the rest of his petition, it is impossible to determine exactly
what evidence Lange believes was unavailable to him at the
time of his guilty plea. The one possible option concerns

(continued...)
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petition was untimely and affirm the PCRA court’s decision
on that basis.
See Doc. 8-4, ECF pp. 47-49, Commonwealth v. Lang, No. 2058 MDA 2011 (Pa.
Super. Ct. Nov. 8, 2012).3

Mr. Lang did not file a petition for allowance of appeal to

the Pennsylvania Supreme Court challenging the Superior Court of Pennsylvania’s
November 8, 2012 decision.
Mr. Lang filed his federal habeas corpus petition on April 10, 2013. (Doc. 1,
Pet.)

III.

Discussion
A.

AEDPA’s Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became
effective on April 24, 1996. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Under the AEDPA, federal habeas corpus petitions are subjet to a one-year
limiatiosn period found in 28 U.S.C. § 2255(d), which provides, in relevant part, as
follows:

2

(...continued)
Lang’s assertion of alibi witnesses; however, these witnesses
and the substance of their testimony would have been known
to Lange before his guilty plea and therefore do not qualify as
after discovered evidence. See Commonwealth v. Johnson,
945 A.2d 185, 190-191 (Pa. Super. 2008), appeal denied 598
Pa. 764, 956 A.2d 433 (2008).

3

The Court takes judicial notice of the Superior Court of Pennsylvania’s docket
sheet in Commonwealth v. Lang, 2058 MDA 2011, available via Pennsylvania’s Unified
Judicial Docket System docket research at: http://ujsportal.pacourts.us.

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(d)(1) A one-year period of limitations 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 for seeking
such review;
(B) the date on which the impediment to filing an
applications 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.
(2) 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 shall not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d)(1)-(2); see generally, Jones v. Morton, 195 F.3d. 153, 157 (3d
Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), a federal habeas petition
must to be filed within one year after the state judgment of conviction becomes final
by the conclusion of direct review or the expiration of the time for seeking such
review. See Wall v. Kholi,

U.S.

,

, 31 S.Ct. 1278, 1283, 179 L.Ed.2d 252

(2011)(citing 28 U.S.C. § 2244(d)(1)(A)); see also Pace v. DiGuglielmo, 544 U.S.
408, 410, 125 S.Ct. 1807, 1810, 161 L.Ed.2d 669 (2005); Wilson v. Beard, 426 F.3d
653, 659 (3d Cir. 2005). This language applies to the right to seek discretionary
review in state appellate courts and means that the judgment does not become final
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until the time period for seeking such review expires, even if review is not sought.
See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000).4
Petitioner was sentenced on March 15, 2010. He did not file a direct appeal
to the Pennsylvania Superior Court. His conviction became final on April 15, 2010,
at the expiration of the thirty-day period to file a direct appeal to the Pennsylvania
Superior Court. See 42 PA. CON . STAT . ANN . § 9545(b)(3); Pa. R. App. 903; Pa. R.
Crim. P. 720(a)(3). The one-year federal limitations period commenced to run on
April 15, 2010, and expired one year later, on April 15, 2011.5 Burns v. Morton, 134
F.3d 109, 111 (3d Cir. 1998). Hence, the instant federal petition filed on April 10,
2013, appears to be untimely by more than two years, unless grounds for statutory
or equitable tolling, or other exception can be demonstrated.

B.

Statutory Tolling

The AEDPA amendments include a tolling provision for “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).
A properly filed state petition “is one submitted according to the state’s procedural
requirements, such as the rules governing the time and place of filing.” Lovasz v.
Vaughn, 134 F.3d 146, 148 (3d Cir. 1998); see also Pace, 544 U.S. at 417, 125

4

If a petitioner pursues “direct review all the way to [the United States Supreme
Court], the judgment becomes final . . . when the [Supreme Court] affirms a conviction on
the merits or denies a petition for certiorari.” Gonzalez v. Thaler,
U.S.
,
, 132
S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012).
5

Petitioner does not claim that any alternative starting date is applicable.

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S.Ct. at 1814 (where the state court rejects petitioner’s PCRA petition as untimely,
the petition “was not ‘properly filed’ and [petitioner is] not entitled to statutory tolling
under § 2244(d)(2)”). Statutory tolling also applies to those periods when an
application for discretionary review is pending in an appellate court of the denial of
postconviction relief, see Kindler v. Horn, 542 F.3d 70, 77 n.5 (3d Cir. 2008)(noting
that the petitioner’s PCRA petition was pending at least through the date the
Pennsylvania Supreme Court denied his petition for review), but it does not apply to
the time the petitioner has to seek certiorari review from the United States Supreme
Court. See Lawrence v. Florida, 549 U.S. 327, 329, 127 S.Ct. 1079, 1081, 166
L.Ed.2d 924 (2007)(a state application for postconviction relief is not pending under
section 2244(d)(2) “when the state courts have entered a final judgment in the
matter but a petition for certiorari has been filed” in the Supreme Court).
Here, the trial court treated Mr. Lang’s March 19, 2010, post-sentence motion
seeking to withdraw his guilty plea based on ineffectiveness of counsel as a PCRA
petition. As the petition was filed prior to his sentence becoming final, his entire
one-year limitations period remained intact. The limitations period did not
commence to start running until Mr. Lang failed to appeal the trial court’s November
18, 2010 decision denying his petition. Consequently, the statute of limitations
started to run on December 20, 2010.6 Absent further tolling, Mr. Lang had until
December 20, 2011, to file his federal habeas petition.

6

As December 18, 2010 fell on a Saturday, pursuant to Fed. R. Civ. P. 6(a)(1)(A),
the limitations period started two days later, Monday, December 20, 2010.

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Mr. Lang’s June 20, 2011, pro se PCRA petition was deemed untimely by the
trial court. Mr. Lang unsuccessfully appealed the dismissal of his second PCRA
petition. Thus, his second PCRA petition provides no tolling benefit for him as it was
not “properly filed” within the meaning of 28 U.S.C. § 2255(d)(2). See Pace, 544
U.S. at 417, 125 S.Ct. at 1814. Thus, absent any other tolling, Mr. Lang’s petition is
time barred.

C.

Equitable Tolling

The limitations period may also be subject to equitable tolling. Miller v. New
Jersey State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998). Equitable tolling
applies when the petitioner shows that he “has been pursuing his rights diligently,”
and yet “some extraordinary circumstances stood in his way and prevented timely
filing.” Holland v. Florida,

U.S.

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, 130 S.Ct. 2549, 2562, 177 L.Ed.2d

130 (2010); see also Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80,
89 (3d Cir. 2013).
Mr. Lang does not argue the issue of the timeliness of his Petition in the body
of his Petition. See Doc. 1, ECF p. 18. Additionally, event though Mr. Lange was
given the chance to reply to the Respondents’ motion to dismiss challenging the
timeliness of his petition, he elected not to file a response. As such, Mr. Lang has
not presented the Court with any reason to warrant the application of equitable
tolling of the limitations period.

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D.

Actual Innocence Exception

In McQuiggins v. Perkins,

U.S.

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, 133 S.Ct. 1924, 1928, 185

L.Ed.2d 1019 (2013), the Supreme Court held that a habeas petitioner who can
show actual innocence under the rigorous standard of Schlup v. Delo, 513 U.S. 298,
115 S.Ct. 851, 130 L.Ed.2d 808 (1995), is excused from the procedural bar of the
statute of limitations under the miscarriage of justice exception. A claim of actual
innocence under Schulp is “not itself constitutional claim, but instead a gateway
through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Schulp, 513 U.S. at 315, 115 S.Ct. at
861(quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d
203 (1993). However, the Supreme Court in McQuiggins, supra, cautioned that
“tenable actual-innocence gateway pleas are rare.” Perkins,

U.S. at

, 133

S.Ct. at 1928.
A habeas petitioner, who seeks to overcome the one-year statute of
limitations in § 2244(d)(1) upon a showing of “actual innocence,” must support his
allegations with “new, reliable evidence” that was not presented at trial and must
show that it was more likely than not that, in light of the new evidence, no juror,
acting reasonably, would have voted to find the petitioner guilty beyond a
reasonable doubt. Schlup, 513 U.S. at 324-27, 115 S.Ct. at 865-67. The Supreme
Court has emphasized that the exception is limited to “certain exceptional cases
involving a compelling claim of actual innocence.” House v. Bell, 547 U.S. 518, 521,
126 S.Ct. 2064, 2068, 165 L.Ed.2d 1(2006); see also Schlup, 513 U.S. at 324, 115

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S.Ct. at 865 (noting that “experience has taught us that a substantial claim that
constitutional error has caused the conviction of an innocent person is extremely
rare”). “Actual innocence” in this context refers to factual innocence and not mere
legal sufficiency. Bousely v. United States, 523 U.S. 614, 623–624, 118 S.Ct. 1604,
1611-12, 140 L.Ed.2d 828 (1998).
In this case, Mr. Lang pled guilty to providing alcohol to, and having
intercourse with, his 18 year old daughter, and pled nolo contendere to charges that
he had supplied marijuana and alcohol to, and digitally penetrated, his daughter’s 17
year old friend. Although he has not responded to the Respondent’s motion to
dismiss challenging the timeliness of his petition, in his habeas petition he argues
the existence of two alibi witnesses which cast doubt on his guilt at the time he
entered his plea. (Doc. 1, ECF p. 5.) However, aside from that general assertion,
Mr. Lang has not submitted any reliable evidence that would cast doubt on his guilty
plea conviction to permit the Court to consider his otherwise time-barred claims.
Specifically, he has not submitted declarations from these alleged alibi witnesses to
suggest how they would testify, or otherwise suggest how their testimony would
suggest he is actually innocent of the crimes to which he pled guilty. Additionally, as
the Superior Court of Pennsylvania noted, “any such witnesses and the substance
of their testimony would have been known to Lang before his guilty plea and
therefore do not qualify as after discovered evidence.” See Doc. 8-4, ECF p. 49,
Commonwealth v. Lang, No. 2058 MDA 2011 (Pa. Super. Ct. Nov. 8, 2012). More
importantly, Mr. Lang’s negotiated plea to the various sex offenses undermines his
claim that another individual committed the crimes. In these circumstances,
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Mr. Lang’s untimely, unsupported, and unverified allegations of actual innocence
based on two alibi witnesses are not sufficiently reliable or relevant to an actual
innocence claim.
For these reasons, Mr. Lang’s petition will be dismissed as untimely.

IV.

Certificate of Appealability
The Court will issue an order dismissing Mr. Lang’s Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254 as time-barred. The order will also
deny a certificate of appealability based on the analysis in this memorandum.
However, Mr. Lang is advised that he has the right for thirty (30) days to appeal our
order denying his § 2254 petition, see 28 U.S.C. § 2253(a); Fed. R. App. P.
4(a)(1)(A), and that the Court’s denial of a certificate of appealability does not
prevent him from doing so, as long as he also seeks a certificate of appealability
from the appropriate court of appeals. See Fed. R. App. P. 22; 3d Cir. L.A.R. 22.1.
An appropriate Order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: APRIL 3, 2014

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEPHEN ROBERT LANG,
Petitioner
v.
JOSEPH MAZURKIEWICZ, et al.,
Respondents

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CIVIL NO. 3:CV-13-0957
(Judge Caputo)

ORDER
AND NOW, this 3rd day of APRIL, 2014,upon consideration of the abovecaptioned petition for writ of habeas corpus and in accordance with the
accompanying Memorandum, it is hereby ORDERED that:
1.

Respondents’ Motion to Dismiss (Doc. 8) is GRANTED.

2.

The petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 (Doc. 1) is DISMISSED as time barred.

3.

A certificate of appealability is DENIED.

4.

The Clerk of Court shall close this case.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge