Appleyard v. Cameron et al

Filing 28

ORDER DISMISSING CASESigned by Honorable William J. Nealon on 9/19/17. (ep)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS APPLEYARD,
Petitioner
v.
Kenneth Cameron, et al.,
Respondents

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 3:CV-14-1429
(Judge Nealon)

MEMORANDUM
Petitioner, Thomas Appleyard, an inmate confined in the State Correctional
Institution, Houtzdale, Pennsylvania, filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. §2254. He attacks a conviction imposed by the Court
of Common Pleas for County, Pennsylvania. (Doc. 1). Following careful
consideration of the parties’ submissions, and for the reasons discussed below, the
Court will dismiss the petition as untimely. See 28 U.S.C. §2244(d).
I.

Background
The victim in this case was born on February 18, 1974, in Mill Hall, Clinton

County, Pennsylvania. (N.T. p. 15). In the Spring of 1985, Petitioner, Thomas
Clair Appleyard married the victim’s mother, Edna Lose. (N.T. p. 16). After the
marriage, the victim lived together with her mother, the Petitioner, and her brother,
in an apartment in Blanchard, Pennsylvania. (N.T. p. 16).

As a form of discipline, Petitioner would paddle the victim with a wooden
paddle, containing holes, when she would not do her chores. (N. T. p. 16-17). The
victim testified that the paddling hurt. (N.T. p. 17). On November 23, 1986,
Petitioner called the victim, who was then twelve years old, into his room and told
her to take of her clothes. (N.T. p. 18). The victim was scared and refused. Id. At
some point, either Petitioner or the victim removed all of her clothes and while the
victim was crying and saying “no,” Petitioner began to touch her breast and vaginal
areas. Id. Later that evening, the victim reported the incident to her mother. (N.T.
p. 19). Additionally, the victim reported this incident to Children and Youth
Services, as well as Trooper Sally Brown of the Pennsylvania State Police. (N.T.
p. 19-20). Petitioner moved out of the home on the 23rd of November, the evening
of the incident, only to move back to the residence sometime in 1987. Id.
Shortly after Petitioner was allowed to return to the residence, he began to
have indecent contact with the victim again. (N.T. p. 21). He now would engage
in sexual intercourse with her. Id. This behavior began in February 1988. Id. In
addition to sexual intercourse, Petitioner began performing oral sex on the victim
and forced her to perform oral sex on him. (N.T. p. 22). The victim was afraid to
tell anyone about these incidents because Petitioner told her that if she did, she
would be put in a home for girls. (N.T. p. 22).
2

Although the victim moved in with her grandfather in 1988 (N.T. p. 24),
Petitioner made her maintain daily telephone contact with him. (N.T. p. 26).
Additionally, Petitioner would make the victim come to his apartment on a weekly
basis to engage in oral sex as well as sexual intercourse. (N. T. p. 32). In addition
to fearing Petitioner’s threats, Petitioner would also punish the victim by painfully
inserting plastic “dildos’ in her vaginal and rectal areas. This type of punishment
would take place whenever the victim would not do her chores or be somewhere
she wasn’t supported to be. Similarly, if the victim would not go into his
apartment or just generally disobey him, this would take place. (N.T. p. 29-30).
Tracy was afraid of the “dildos” and when Appellant would use them on her, she
would cry and tell him “no”. (N.T. p. 29).
Finally, Petitioner took nude photographs of the victim posing with the
sexual devices and threatened to spread the photos around and to take them to her
school if she did not listen. (N.T. 31-32). These incidents took place at least once a
week, of not more, from January 1988, through and until March 1991. (N.T. p.
51). The victim did not want any of these incidents to occur but felt that she had no
choice. (N.T. p. 51).
Petitioner was charged with once count of statutory rape, thirty-nine counts
of rape, sixty-five counts of involuntary deviate sexual intercourse, thirty-nine
3

counts of indecent assault and one count of corruption of minors. See
Commonwealth of Pennsylvania v. Thomas C. Appleyard, CP-14-CR-00016011992 (Criminal Docket). On March 22, 1994, after a jury trial, Petitioner was
found guilty of all 145 counts in which he had been charged. Id.
On April 4, 1994, Petitioner was sentenced to an aggregate sentence of
thirty-one (31) to sixty-two (62) years imprisonment. Id.
On April 11, 1994, Petitioner filed a direct appeal to the Pennsylvania
Superior Court. (Doc. 24-1 Notice of Appeal). He raised the following two issues
for review:
1. Whether the trial court erred in denying Appellant’s motion in
limine and in permitting testimony to be introduced at trial concerning
prior sexual misconduct between Appellant and the victim, and
whether trial counsel was ineffective for failing to seek a cautionary
instruction upon the admission of such evidence?
2. Whether separate sentences for thirty-nine counts of rape and
sixty-five counts of involuntary deviate sexual intercourse constitute
an illegal sentence, when the counts arose from the same criminal
conduct?
(Doc. 24-1 at 33, Superior Court Memorandum Opinion).
By Memorandum Opinion filed August 29, 1995, a panel of the
Pennsylvania Superior Court vacated Petitioner’s sentence and remanded for resentencing. Id.
On September 27, 1995, Petitioner filed an allowance of appeal to the
4

Pennsylvania Supreme Court, which was denied on April 18, 1996. (Doc. 24-1 at
38-39, Order of Supreme Court).
On August 26, 1996, Petitioner was re-sentenced to an aggregate term of
imprisonment of not less than twenty-seven (27) years, nor more than fifty-four
(54) years. See Commonwealth of Pennsylvania v. Thomas C. Appleyard, CP-14CR-0001601-1992 (Criminal Docket).
On September 5, 1996, Petitioner filed a motion to reconsider and modify
the sentence imposed and to reduce the period of incarceration. (Doc. 24-1 at 82,
Post-Sentence Motion).
By Opinion and Order dated October 31, 1996, Petitioner’s post-sentence
motion was denied. (Doc. 24-1 at 46, Order).
On November 17, 1996, Petitioner filed an appeal to the Pennsylvania
Superior Court. (Doc. 24-1 at 47, Appeal).
By Order dated December 16, 1996, the Court of Common Pleas denied
Petitioner’s petition to proceed in forma pauperis on appeal, stating that the
“petition is inappropriate at this time inasmuch as Thomas C. Appleyard did not
timely appeal any orders of this Court.” (Doc. 24-1 at 50, Order).
On January 30, 1997 Petitioner filed a petition under Pennsylvania’s Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et seq. (“PCRA”). (Doc. 24-1 at 51,
5

PCRA petition).
By Order dated July 18, 1997, Petitioner was appointed counsel and granted
leave to file an amended PCRA, if needed. (Doc. 24-1 at 61, Order).
On July 28, 1999, Petitioner filed a counseled Amended Motion for PostConviction Collateral Relief. (Doc. 24-1 at 62).
By Memorandum and Order dated August 8, 2000, Petitioner’s PCRA
petition was denied. (Doc. 24-2 at 4-5).
On September 21, 2000, Petitioner filed a Notice of Appeal to the
Pennsylvania Superior Court, appealing the PCRA Court’s August 8, 2000 Order
denying the PCRA petition. (Doc. 24-2 at 29, Notice of Appeal).
On April 27, 2001, the Pennsylvania Superior Court affirmed the lower
court’s decision denying Petitioner’s PCRA petition. (Doc. 24-2 at 38,
Memorandum Opinion).
On May 25, 2001, Petitioner filed a Petition for Allowance of Appeal to the
Pennsylvania Supreme Court, which was denied on February 1, 2002. (Doc. 24-2
at 44, Order).
On January 23, 2003, Petitioner filed a second PCRA petition. (Doc. 24-2 at
45).
On April 21, 2004, Petitioner filed a third PCRA petition. (Doc. 24-2 at 68).
6

By Order dated May 5, 2004, the PCRA court dismissed the PCRA petition
“without consideration of its merits”, stating that “Defendant has a motion for Post
Conviction Collateral Relief, filed January 23, 2003, currently pending before this
Court.” (Doc. 24-2 at 57, Order).
On June 4, 2004, Petitioner filed a Notice of Appeal from the PCRA Court’s
Order. (Doc. 24-2 at 69). By Judgement Order dated August 8, 2005, the
Pennsylvania Superior Court dismissed Petitioner’s appeal, stating that they “are
precluded from reaching the merits of Appleyard’s appeal, as the law is clear that a
serial or subsequent PCRA petition may not be entertained while a previous
petition is still pending.” (Doc. 24-2 at 73, Order).
On July 24, 2014, Appleyard filed the instant petition for writ of habeas
corpus. (Doc. 1, petition). He once again challenges his 1994 conviction.
Specifically, Appleyard raises the following four grounds for relief: (1) Inordinate
delay; (2) Ineffective assistance of counsel; and (3) Sentence is cruel and unusual
punishment. Id.
II.

Discussion
A state prisoner requesting habeas corpus relief pursuant to 28 U.S.C. §

2254 must adhere to a statute of limitations that provides, in relevant part, as
follows:
7

(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 . .
.
(d)(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)(emphasis added); see generally, Jones v. Morton, 195
F.3d. 153, 157 (3d Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), the
period of time for filing a habeas corpus petition begins to run when direct review
processes are concluded. See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir.
2000)(“[T]he AEDPA provides that upon conclusion of direct review of a
judgment of conviction, the one year period within which to file a federal habeas
corpus petition commences, but the running of the period is suspended for the
period when state post-conviction proceedings are pending in any state
court.”)(emphasis in original); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir.
1998)(per curiam); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). It is
not the conclusion of state post-conviction collateral review processes that starts
the running of the limitations period. See Bunnell v. Yukins, No. 00-CV-73313,
8

2001 WL 278259, *2 (E.D. Mich. Feb 14, 2001)(“Contrary to Petitioner's
assertion, the limitations period did not begin to run anew after the completion of
his post-conviction proceedings.”).
As indicated above, section 2244(d)(2) operates to exclude only the time
within which a “properly filed application” for post conviction relief is pending in
state court. Thus, when a petition or appeal has concluded and is no longer
pending, the one (1) year statute of limitations starts to run and the time is counted.
A “properly filed application” for post conviction relief under § 2244(d)(2) is one
submitted according to the state’s procedural requirements, such as rules governing
time and place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). 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). “Pending,” however, does
not include the period during which a state prisoner may file a petition for writ of
certiorari in the United States Supreme Court from the denial of his state postconviction petition. Stokes v. District Attorney of the County of Philadelphia, No.
99-1493, 2001 WL 387516, at *2 (3d Cir., April 17, 2001). Likewise, the statute of
limitations is not tolled under § 2244(d)(2) for the time during which a habeas
petition is pending in federal court. Jones, 195 F.3d at 158.
9

The AEDPA statute of limitations also may be subject to equitable tolling.
The Third Circuit has held that the federal habeas statute of limitations is subject to
equitable tolling only in extraordinary circumstances. See Merritt v. Blaine, 326
F.3d 157, 161 (3d Cir. 2003). In Merritt, the Court of Appeals set forth two general
requirements for equitable tolling: “(1) that the petitioner has in some
extraordinary way been prevented from asserting his or her rights; and (2) that the
petitioner has shown that he or she exercised reasonable diligence in investigating
and bringing the claim.” Id. (internal citations and quotations omitted).
A. Statutory Tolling
The Petitioner in the instant matter was resentenced on August 26, 1996.
Because an appeal was never perfected in the Pennsylvania Superior Court, his
judgment of sentence became final on September 25, 1996, at the expiration of the
thirty-day period to file a direct appeal to the Pennsylvania Superior Court. See 42
Pa.C.S.A. § 9545(b)(3); Pa.R.App.P. 903; Pa.R.Crim.P. 720(a)(3). Thus, the clock
for filing a § 2254 petition began on September 25, 1996 and Petitioner had until
September 25, 1997, to file a timely PCRA petition, as well as a federal habeas
corpus petition. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Pursuant to 28 U.S.C. § 2244(d)(2), when Appleyard filed his timely PCRA
petition on June 30, 1997, the AEDPA’s filing period was statutorily tolled, with
10

approximately 87 days of the one (1) year filing period remaining. See Harris, 209
F.3d at 328. On February 1, 2002, the Pennsylvania Supreme Court denied
allocatur on Appleyard’s PCRA petition that was filed on June 30, 1997. The
remaining 87 day statutory period started to run again on February 1, 2002.
Consequently, Petitioner was required to file his habeas corpus petition
approximately, on or before April 30, 2002. The instant petition was not filed until
July 24, 2014, more than twelve years after the limitations period expired. Thus,
the petition for habeas corpus relief is barred by the statute of limitations.
Petitioner’s second PCRA petition, filed on January 23, 2003, was filed after
the expiration of the AEDPA statute of limitations and, therefore, does not toll the
statute of limitations. Consequently, the AEDPA statute of limitations is not
subject to statutory tolling.
B. Equitable Tolling
We must next examine whether the AEDPA statute of limitations should be
equitably tolled to consider the petition timely filed. Robinson v. Johnson, 313
F.3d 128, 134 (3d Cir.2002), cert. denied, 540 U.S. 826 (2003)(citing Miller v.
New Jersey State Dep’t of Corr., 145 F.3d 616, 617–618 (3d Cir.1998)). The
limitation period may be tolled when the principles of equity would make the rigid
application of a limitation period unfair. Holland v. Florida, 560 U.S. 631, 130
11

S.Ct. 2549, 2560 (2010)(“Now, like all 11 Courts of Appeals that have considered
the question, we hold that § 2254(d) is subject to equitable tolling in appropriate
cases.”); Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir.2006); Jones v. Morton,
195 F.3d 153, 159 (3d Cir.1999).
To be entitled to equitable tolling, [Petitioner] must show “ '(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Holland, 130 S.Ct. at 2562 (quoting
Pace, 544 U.S. at 418); Lawrence v. Florida, 549 U.S. 327, (2007) (quoting id.).
Courts must be sparing in their use of equitable tolling. Seitzinger v. Reading
Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999). In fact, the United States
Court of Appeals for the Third Circuit has held that equitable tolling is proper
“only in the rare situation where [it] is demanded by sound legal principles as well
as the interests of justice.” United States v. Midgley, 142 F.3d 174, 179 (3d
Cir.1998).
In reviewing the record, including Petitioner’s second PCRA petition, the
Court finds that Petitioner has not identified any other possible basis for equitable
tolling. None of the circumstances which warrant equitable tolling apply in this
case to render the instant Petition timely because Petitioner did not act promptly to
preserve his rights in this Court. Fahd, 240 F.3d at 244. Thus, he has failed to
12

allege that some extraordinary circumstance prevented him from asserting his
rights in a timely habeas corpus petition and has failed to demonstrate that he
exercised reasonable diligence in investigating and bringing his claims. Merritt,
326 F.3d at 168.
In determining whether extraordinary circumstances exist to warrant the
application of equitable tolling, this Court must also examine Petitioner’s due
diligence in pursuing the matter under the specific circumstances he faced. Traub
v. Folio, No. 04–386, 2004 WL 2252115, at *2 (E.D. Pa. Oct.5, 2004) (citing
Schleuter v. Varner, 384 F.3d 69 (3d Cir.2004)) (affirming dismissal of habeas
petition as time barred and not entitled to equitable tolling because lengthy periods
of time had elapsed following his conviction before he sought relief). It is
Petitioner’s burden to show that he acted with reasonable diligence and that
extraordinary circumstances caused his petition to be untimely. Id. Petitioner
attempts to argue that this Court should find inordinate delay in the state court’s
review of Petitioner’s second PCRA petition, filed well after the running of this
Court’s statute of limitations. However, Petitioner fails to allege any steps that he
took to timely file the instant federal habeas petition and was somehow prevented
from timely filing. As such, Petitioner did not act in a reasonably diligent fashion.
Accordingly, equitable tolling is inapplicable in this matter. The petition will be
13

dismissed.
III.

Certificate of Appealability.
When a district court denies a habeas petition on procedural grounds without

reaching the underlying constitutional claims, a certificate of appealability should
issue only if (1) the petition states a valid claim for the denial of a constitutional
right, and (2) reasonable jurists would find it debatable whether the district court
was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, reasonable jurists could not disagree that the instant petition is
time-barred. It is statutorily barred, and neither statutory nor equitable tolling apply
to the petition.
IV.

Conclusion
In light of the foregoing, the petition for writ of habeas corpus will be

denied, and the case will be closed. An appropriate order will follow.

Dated: September 29, 2017

/s/ William J. Nealon
United States District Judge

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS APPLEYARD,
Petitioner
v.
Kenneth Cameron, et al.,
Respondents

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 3:CV-14-1429
(Judge Nealon)

ORDER
AND NOW, THIS 19th DAY OF SEPTEMBER, 2017, for the reasons set
forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
1.

The above captioned petition for writ of habeas corpus is
DISMISSED as untimely under the statute of limitations.
See 28 U.S.C. §2244(d).

2.

The Clerk of Court is directed to CLOSE this case.

3.

There is no basis for the issuance of a Certificate of
Appealability. See 28 U.S.C. §2253(c).

4.

Petitioner’s motion for leave to file paperwork (Doc. 27)
is DENIED.1

/s/ William J. Nealon
United States District Judge

1

Petitioner seeks to file paperwork concerning the merits of his underlying claims.
However, such paperwork would have no bearing on the Court’s ruling herein.