King v. Tritt et al

Filing 37

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 06/2414. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DERRICK LAMAR KING,
Petitioner

:
No. 3:13cv2045
:
:
(Judge Munley)
v.
: (Magistrate Judge Schwab)
:
WARDEN BRENDA TRITT,
:
Respondent
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM
Before the court for disposition is Magistrate Judge Susan E.
Schwab’s report and recommendation (hereinafter “R&R”), which proposes
dismissing the instant habeas corpus petition as untimely. Petitioner
Derrick L. King (hereinafter “petitioner”) has filed objections to the report
and recommendation, bringing the case to its present posture.
Background
On September 8, 2004, a York County Pennsylvania Court of
Common Pleas jury convicted petitioner of burglary. (Doc. 13 at 20,
Criminal Dckt.). The court sentenced him on June 29, 2005 to a term of
three (3) to ten (10) years of imprisonment on the burglary charge. (Id. at
23). Petitioner appealed to the Superior Court of Pennsylvania, which
affirmed the conviction. Commonwealth v. King, 928 A.2d 1124 (Pa.
Super. Ct. 2007). Petitioner filed a petition for allowance of appeal with

the Pennsylvania Supreme Court. The court denied the petition on July 26,
2007. (Doc. 13 at 60).
Petitioner subsequently filed two Post Conviction Relief Act (“PCRA”)
motions in state court. He filed the first on March 17, 2008. The state
court held a hearing and denied the motion on August 7, 2008. (Id. at 29,
72). Petitioner appealed to the Pennsylvania Superior Court, which
affirmed the state court’s denial. (Id. at 68). Petitioner filed a petition for
allowance of appeal with the Pennsylvania Supreme Court, which the court
denied on February 2, 2010. (Id. at 77). Petitioner filed the second PCRA
petition in May of 2011. It was denied by the trial court and Pennsylvania
Superior Court on March 13, 2012. (Id. at 88).
More than three years after the denial of his initial PCRA motion,
petitioner, on July 30, 2013, filed the instant habeas corpus petition
pursuant to 28 U.S.C. § 2254 (hereinafter “section 2254 petition” or
“habeas corpus petition”). (Doc. 1). Respondent filed a motion to dismiss
the habeas corpus petition as untimely based on the one-year statute of
limitations for such petitions. The parties do not dispute that the statute of
limitations had run on petitioner’s section 2254 petition by July 30, 2013
unless the statute should be equitably tolled or an exception to the statute

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of limitation exists.
Petitioner argues that the statute of limitations should be equitably
tolled based upon his mental incompetence. He also argues that an
equitable exception to the statute of limitations is applicable - that is, he is
actually innocent and has newly discovered evidence to establish his
innocence. Magistrate Judge Schwab examined both of these issues and
found that neither equitable tolling nor an equitable exception applies to the
petitioner. Thus, she suggests granting the respondent’s motion to
dismiss. Petitioner has filed objections to the report and recommendation,
bringing the case to its present posture.
Standard of review
In disposing of objections to a magistrate judge’s report and
recommendation, the district court must make a de novo determination of
those portions of the report against which objections are made. 28 U.S.C.
§ 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.
1983). The court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. Henderson v.
Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The district court judge may
also receive further evidence or recommit the matter to the magistrate

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judge with instructions. Id.
Discussion
The instant matter arises from a habeas corpus petition for relief
under 28 U.S.C. § 2254, which provides:
The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus on 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).
The statute of limitations for filing a petition under § 2254 is one year.
Specifically, the law 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
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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.
28 U.S.C. § 2244(d)(1).
In the instant case, petitioner asserts that the statute of limitations
should be tolled because of his mental incompetence or an exception
should apply because newly discovered evidence establishes he is actually
innocent of the crime. Magistrate Judge Schwab rejected both arguments,
and the petitioner objects. We will address each claim separately.
1) Equitable Tolling
Petitioner’s initial argument is that the statute of limitations should be
tolled for equitable reasons. The United States Supreme Court has held
that the statute of limitations for section 2254 petitions may be tolled for
equitable reasons in appropriate cases. Holland v. Florida, 560 U.S. 631,
645 (2010). The Court explained that such tolling is only available where
the petitioner demonstrates: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Id. at 649 (internal quotation marks and
citation omitted).
In the instant case, petitioner asserts that an extraordinary

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circumstance stood in the way of his filing, that is he suffers from mental
incompetence that prevented him from meeting the statute of limitations.
When determining whether extraordinary circumstances justify an
equitable extension of the section 2254 statute of limitations, courts
examine the “totality of the circumstances.” Champney v. Sec’y Pa. Dept.
of Corrections, 469 F. App’x 113, 117 (3d Cir. 2012). Factors to consider
include the following:
(1) whether the petitioner was adjudicated
incompetent and, if so, when did the adjudication
occur in relation to the habeas statutory period; (2)
whether the petitioner was institutionalized for his
mental impairment; (3) whether the petitioner
handled or assisted in other legal matters which
required action during the federal limitations period;
and (4) whether the petitioner supported his
allegations of impairment with extrinsic evidence
such as evaluations and or/medications.
Id. at 118 (citing Passmore v. Pennsylvania, No. 08-705, 2008 WL
2518108 at 3 (M.D. Pa., 2008) (editing marks omitted)). This list of factors
is not exhaustive. Id.
With regard to most of these factors, the R&R does not differ greatly
from the petitioner’s position. For example, it is not disputed that the
petitioner has not been adjudicated incompetent. The state, however, did
institutionalize him for his mental impairment in a sense because he was

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placed in Psychiatric Observation Cells for several periods during his
incarceration after he had attempted to commit suicide. Additionally, he
did support allegations of impairment by providing medical records.
The dispute in this case involves the nature and extent of petitioner’s
mental impairment and whether it prevented him from timely filing a section
2254 petition. The R&R points out that the petitioner primarily relies upon
his illiteracy and lack of an education rather his than psychiatric issues
which are anxiety, stress, and anti-social disorder. Lack of education and
illiteracy, however, do not favor equitable tolling. Mendez v.
Superintendent SCI-Huntingdon, No. 1:13cv1137, 2013 WL 3894865 at *3
(M.D. Pa. July 26, 2013) (collecting cases).
Additionally, the psychiatric issues petitioner complains of such as
anxiety, stress or depression are all normal incidents of prison life that
should not be used as an excuse to justify late filing.1 See Martin v. Ayers,
41 F. App’x 972 (9th Cir. 2002); United States v. Harris, 268 F. Supp. 2d
1

The petitioner has attempted suicide numerous times while
incarcerated. However, as noted by the Magistrate Judge, and not
objected to by the petitioner: “[F]ollowing each suicide attempt, [petitioner]
was essentially rehabilitated and prescribed medications that helped him
cope with prison life, which, again, he told doctors was the trigger for his
suicide attempts.” (Doc. 32, R&R at 23). Moreover, it is undisputed that
the final attempt occurred while 178 days remained on his section 2254
statute of limitations.
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500 (E.D. Pa. 2003). Further, with regard to petitioner’s mental
incompetency, the Magistrate Judge states: “I find the [prison health]
assessor’s assessment of King’s psychological abilities to be highly
credible, wherein the assessor noted that King’s I.Q. score does not
adequately reflect King’s true level of intelligence and he could be feigning
for secondary gain.” (Doc. 32, R&R at 22).
Most telling, however, petitioner has engaged in litigation since his
incarceration and denial of his direct appeal. For example, he filed a Post
Conviction Relief Act (hereinafter “PCRA”) motion in state court, which he
litigated all the way to the Pennsylvania Supreme Court. That court denied
his petition for allowance of appeal on February 2, 2010 after which
petitioner could have filed his section 2254 motion. He did not file the
motion, however, until July 2013.
Notably, petitioner had at least one other inmate to assist him with
his legal filings, Norman Johnston. Johnston testified at the hearing before
Judge Schwab. He indicated that he offered to help petitioner filing his
federal habeas corpus petition after petitioner lost his PCRA appeal in the
Superior Court and once he finished drafting the petition for allowance of
appeal in the Supreme Court of Pennsylvania. (Doc. 35, Notes of

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Testimony, March 14, 2014 at 46). Petitioner also testified that Johnston
pointed him in the general direction of the habeas corpus statute. (Id. at
34).
Based on all the above, we find that mental incompetence did not
prevent petitioner from timely filing a section 2254 petition. Thus, equitable
tolling cannot be used to extend the statute of limitations.
2) “Miscarriage of Justice” exception
The second theory under which petitioner could possibly establish
that his petition is not time barred is the “equitable exception” or
“miscarriage of justice” exception to the statute of limitations. To avoid a
miscarriage of justice, a federal court may entertain a section 2254 habeas
corpus petition where that petition raises a convincing claim of actual
innocence even if the statute of limitations for such a petition has expired.
McQuiggin v. Perkins, 133 S. Ct. 1924, 1934-35 (2013). The miscarriage
of justice exception may only be used where a petitioner demonstrates
“that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.” Id. at 1935 (internal
quotation marks and citation omitted).
The purpose of the miscarriage of justice exception is to “balance

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societal interests in the finality, comity, and conservation of scarce judicial
resources with the individual interest in justice that arises in the
extraordinary case.” Schlup v. Delo, 513 U.S. 298, 324 (1995). The
exception is narrow, and applies only where the defendant is “actually
innocent” of the charges. An example of evidence that establishes actual
innocence is a credible confession to the crime by another person. Sawyer
v. Whitely, 505 U.S. 333, 340-41 (1992).
In the instant case, the new evidence that petitioner seeks to provide
is testimony from an alleged witness to the crime, Kristopher Harris.
Petitioner met this witness years after the crime while he was in prison.
Petitioner presented this witness’s affidavit which provides as follows:
I am willing to testify to the actual innocence of [the
petitioner] as it relates to his conviction of the house
of 612 Company Street, in York, PA. I saw the
Burglar, he is “light skinned,” and [King] is very
“dark skinned,” that’s how I know it was “not” him.

(Doc. 20-2). As follows, the R&R points out that this evidence is not
reliable:
Not only are the circumstances under which this
affidavit arose suspicious, but “[i]t is . . . [also]
reasonable to presume that there is something
suspect about a defense witness who is not
identified until after the 11th hour has passed.”
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Taylor v. Illinois, 484 U.S. 400, 414 (1988). With
respect to the surrounding circumstances, King
testified at the evidentiary hearing that while he was
in the prison yard at SCI Dallas he told Harris that
“[the police] arrested [him (i.e. King)] for some
burglaries out of York County.” HT. 21. Thereafter,
based solely on that statement, King asserted that
Harris miraculously provided him with all of the
details of the actual burglary, and then the two men
worked together in order for King to file a second
PCRA petition presenting this “newly discovered”
evidence. Id. at 21-22
(Doc. 32, R&R at 26).
We agree with the R&R and will overrule the petitioner’s objections.
The evidence at issue is not such that no reasonable jury would have
convicted the petitioner had they heard it. An affidavit was written by
someone the petitioner met in jail indicating that more than seven years
earlier that person had witnessed the burglary at issue and the skin of the
perpetrator was lighter than that of the petitioner.2 This evidence does not
rise to the level of a credible confession to the crime by someone else or
scientific/DNA evidence that precludes the petitioner from being
perpetrator of the crime. A reasonable juror could consider this evidence
in addition to the other evidence in the case and nonetheless find the

2

The Superior Court opinion on petitioner’s second PCRA motion
indicates that petitioner obtained the “new evidence” in March of 2011.
(Doc. 13 at 7). As set forth above, the burglary occurred in October 2003.
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accused guilty.
Other strong evidence supports the underlying state court conviction.
A York County jury convicted defendant of burglarizing a residence located
at 612 Company Street, York, Pa., on October 26, 2003. Items stolen
during the burglary included a digital camera, a Swiss watch and a
collection of state quarters. The victim caught the perpetrator in the act of
burglarizing his house and was able to view him for some seconds before
the burglar realized he was being watched.
At trial the victim identified the defendant as the perpetrator.
Additionally, petitioner’s thumb print was found on a bowl from which the
state quarters were stolen.3 Based upon the evidence, including the
eyewitness testimony of the victim and the petitioner’s thumb print being
found at the scene of the crime, the petitioner was found guilty.

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Petitioner objects to the R&R because it reviews the evidence that
was presented against the defendant in a different case. It appears that
this objection has merit, but it does not require us to reverse the R&R.
The additional evidence in the appropriate case was even more damaging
to the defense than the evidence that the R&R discussed. We have
derived the facts regarding the evidence from the briefs filed by the
Commonwealth and defense on petitioner’s direct appeal in state court to
the Pennsylvania Superior Court. See 2007 WL 1198950; 2007 WL
1198951. The opinion from Superior Court was not provided by either
party. The facts presented in the state court appellate briefs are not
substantially different from each other.
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It is not convincing to argue that they jury would have found the
defendant not guilty had an alleged eyewitness, who petitioner met in
prison, testifed that the perpetrator’s skin color is lighter than the
defendant’s skin color. Accordingly, the petitioner’s claim of the
“miscarriage of justice” exception to the section 2254 statute of limitations
based upon an assertion of “actual innocence” will be denied.
Conclusion
For the reasons set forth above, we will adopt the conclusion of the
report and recommendation that the statute of limitations should not be
equitably extended and that the miscarriage of justice exception is
inapplicable. An appropriate order follows.

Date: June 24, 2013

s/ James M. Munley
Judge James M. Munley
United States District Court

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