Trollinger v. Ferguson et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 5/23/17. (ao)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL TROLLINGER,

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Plaintiff
v.
TAMMY FERGUSON,
Defendants

CIVIL ACTION NO. 3:16-CV-2274
(Judge Nealon)

MEMORANDUM
Petitioner, an inmate confined in the Benner State Correctional Institution,
Bellefonte, (“SCI-Benner”), Pennsylvania, filed the above captioned petition for
writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Doc. 1, petition). Petitioner
challenges a judgment of sentenced imposed by the Dauphin County Court of
Common Pleas. Id. For the reasons set forth below, the petition will be dismissed
as untimely. See 28 U.S.C. §2244(d).
I.

Background
The following background has been extracted from the Pennsylvania

Superior Court‟s October 27, 2015 Opinion affirming the dismissal of Trollinger‟s
petition under Pennsylvania‟s Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et
seq., (“PCRA”):
Appellant, Michael W. Trollinger, appeals from the order
denying his petition for relief pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
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Appellant pled guilty pursuant to a negotiated agreement on
February 5, 2013, to seven counts of possession of a controlled
substance with intent to deliver (“PWID”) and one count of
possession of a prohibited firearm.
The Commonwealth
summarized the factual basis of the plea as follows:
[O]n December 9, 2010, the defendant delivered $300
[worth] of cocaine to a confidential informant near Penn
and Wisconsin Streets in the City of Harrisburg. The crack
cocaine weighed over two grams. I believe it was 2.2
grams.
Count 2 alleged that on January 5th, 2011, the defendant
delivered $400 worth of cocaine to a confidential informant
near Green and Radnor Streets in the City of Harrisburg.
The cocaine weighted 3.5 grams.
At Count 3, on August 18th, 2011, the defendant delivered
$400 worth of marijuana, namely 4.3 grams, to a
confidential informant at Penn Street and Wisconsin Street
in the City of Harrisburg.
At Count 4, on September 27th, 2011, the defendant
delivered $300 worth of cocaine, which was three grams, to
a confidential informant near Green and Schuylkill Streets
in the City of Harrisburg.
Count 5, between the dates of December 9, 2010, and
September 29th, 2011, the defendant utilized a cell phone to
commit the crime of unlawful delivery of a controlled
substance. In other words, the cell phone was utilized to set
up the drug deals.
At Count 6, on September 29, 2011, the defendant was
found in possession of a substantial amount of marijuana. I
believe there was over 100 grams of marijuana as well as
plants. That marijuana was possessed with the intent to
deliver it to another person.

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At Count 7, the defendant was also in possession of
cocaine. I believe it was over 100 grams of cocaine that was
in his possession. I believe it was in his house. What
happened, on September 29th, there was a search warrant
executed on his home and a substantial amount of weed as
well as cocaine as well as scales and baggies were found in
addition to $25,000.
Count 8. Count 8 is withdrawn.
Count 9. When thy executed the search warrant on
September 29th, 2011 –
Just to be clear, Count 9 was amended on the
criminal information.
--the defendant was in possession in his home
of three handguns; a Taurus .40 caliber
handgun, a Mossberg 12 gauge shotgun, an
Intratec .22 caliber handgun.
N.T. (Guilty Plea), 2/5/13, at 4-5.
On April 1, 2013, the trial court sentenced Appellant in
accordance with the plea agreement to an aggregate term of
imprisonment of eight to sixteen years. The sentence imposed
was as follows:
AND NOW, this 1st day of April 2013, at Count 1, we
sentence the defendant to 3 to 6 years in state prison, a fine
of $50, plus costs; Count 2, we sentence the defendant to 3
to 6 years, a fine of $50, plus costs; at Count 3 we sentence
the defendant to 3 to 6 years, a fine of $50, plus costs; at
Count 4 we sentence the defendant to 3 to 6 years, a fine of
$50, plus costs; at Count 5 we sentence the defendant 1 to 2
years, a fine of $25, plus costs; at Count 6 we sentence the
defendant to 5 to 10 years, a fine of $50, plus costs; at
Count 7 we sentence the defendant to 8 to 16 years, a fine
of $50, plus costs; and at Count 9, we sentence the
defendant to 5 to 10 years.
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All sentences will run concurrently to one another, so the
defendant has an aggregate sentence of 8 to 16 years.
Order, 4/1/13, at 1. Appellant did not file a post-sentence motion
or an appeal from the judgment of sentence.
On September 18, 2014, Appellant filed a pro se PCRA petition.
On September 24, 2014, the PCRA court appointed counsel, who
filed a supplemental petition on December 1, 2014. On February
12, 2015, the PCRA court issued notice of its intent to dismiss
Appellant‟s petition. The PCRA court dismissed the petition on
March 10, 2015, and Appellant filed this timely appeal on March
30, 2015. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant raises the following single issue on appeal:
I.

WHETHER THE SENTENCE THE APPELLANT
RECEIVED WAS ILLEGAL?

Appellant‟s Brief at 5. Appellant asserts that his sentence
was illegal based upon Alleyne v. United States, ____ U.S.
____, 133 S.Ct. 2151 (2013), and Commonwealth v.
Newman, 99 A.2d 86 (Pa. Super. 2014) (en banc).1
Appellant asserted to the PCRA court and maintains here
that his mandatory minimum sentence pursuant to 42
Pa.C.S. § 9712.12 is illegal because section 9712.1 is
unconstitutional.
When reviewing the propriety of an order denying PCRA
relief, we consider the record “in light most favorable to the
Appellant‟s additional reliance on Commonwealth v. Hughes, 2478 EDA 2013, ____A.3d____ (Pa. Super. Filed March 18, 2015), Commonwealth v. Valentine,
101 A.3d 801 (Pa. Super. 2014), and Commonwealth v. Ferguson, 107 A.3d 206
(Pa. Super. 2015), is misplaced as these cases are appeals from the judgment of
sentence and do not involve the jurisdictional considerations of the PCRA.
2
That section provided for mandatory minimum sentences for certain drug offenses
committed with firearms.
1

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prevailing party at the PCRA level.” Commonwealth v.
Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (quoting
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining
whether the evidence of record supports the conclusions of
the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA
court‟s findings that are supported in the record and will not
disturb them unless they have no support in the certified
record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014). “There is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can
determine from the record that no genuine issues of material
fact exist, then a hearing is not necessary.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81
(Pa. Super. 2003)).
Appellant‟s issue is not waived because challenges to the
legality of a sentence cannot be waived. Commonwealth
v. Miller, 102 A.3d 988, 996 (Pa. Super. 2014) (Alleyne
challenge to legality of sentence is “not technically
waivable”). However, the issue is untimely because
Appellant raised it for the first time more than one year
after his judgment of sentence became final, and he has not
asserted and provide one of the PCRA‟s enumerated
exceptions. As a result, we lack jurisdiction to review it. 42
Pa.C.S. § 9545(b).
A PCRA petition must be filed within one year of the date
that the judgment of sentence became final. 42 Pa.C.S. §
9545(b)(1). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in
order to reach the merits of the petition. Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of
sentence “becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at
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the expiration of time for seeking the review.” 42 Pa.C.S. §
9545(b)(3).
Our review of the record reflects that Appellant‟s judgment
of sentence became final on May 1, 2013, thirty days after
the trial court imposed the judgment of sentence, and
Appellant failed to file a direct appeal with this Court. 42
Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, a timely
PCRA petition had to have been filed by May 1, 2014.
Appellant did not file the instant PCRA petition until
September 18, 2014. Thus, Appellant‟s PCRA petition
underlying the instant appeal is patently untimely.
(Doc. 11-1 Pennsylvania Superior Court Opinion at 2-7).
By Memorandum Opinion dated October 27, 2015, the Pennsylvania
Superior Court affirmed the PCRA court‟s dismissal of Trollinger‟s PCRA petition
as untimely. Id. Trollinger filed a petition for allowance of appeal, which was
denied by the Pennsylvania Supreme Court on August 10, 2016. (Doc. 11-1 at 13,
Order).
On November 10, 2016, Trollinger filed the instant the instant petition for
writ of habeas corpus. (Doc. 1, petition).
In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and
Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued formal notice to
Brooks that he could either have the petition ruled on as filed, that is, as a § 2254
petition for writ of habeas corpus and heard as such, but lose his ability to file a
second or successive petition, absent certification by the court of appeal, or
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withdraw his petition and file one all-inclusive § 2254 petition within the one-year
statutory period prescribed by the Antiterrorism Effective Death Penalty Act
(“AEDPA”). (Doc. 4). On January 17, 2007, Trollinger returned the notice of
election form, indicating that he wished to proceed with his amended petition for
writ of habeas corpus. (Doc. 5). Thus, a Show Cause Order was issued on January
30, 2017. (Doc. 6). On March 15, 2017, the District Attorney of Dauphin County
filed a response to the petition. (Doc. 11). No traverse has been filed.
II.

Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

established a one-year statute of limitations for the filing of federal habeas corpus
petitions pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d). The statute also
prescribes how the one-year limitation period is calculated, including the date on
which the limitation period begins, id. § 2244(d)(1), and the circumstances under
which the limitation period may be tolled, id. § 2244(d)(2).
A.

Calculation of the Applicable Limitation Period

Under the AEDPA, a state prisoner generally must file any federal habeas
corpus petition within one (1) year of the date that his conviction “became final by
the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). Where a prisoner does not pursue direct
review of his conviction all the way to the Supreme Court of the United States, his
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conviction becomes final when the time for pursuing direct review in that Court, or
at any level of state court, expires. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Here, Trollinger was sentenced on April 1, 2013. Because Trollinger did not file a
direct appeal to the Superior Court of Pennsylvania, his conviction became final
thirty days later on May 1, 2013. See Pa. R. Crim. P. 720(A)(3) (permitting thirty
(30) days after imposition of sentence to file a notice of appeal where the
defendant has not filed a timely post-sentence motion).
Thus, absent any applicable tolling period, Trollinger had until May 1, 2014,
to timely file his federal petition for a writ of habeas corpus. The instant petition
was filed more than two years later, on November 10, 2016.
B.

Statutory Tolling

A person in state custody may toll the running of the AEDPA's limitation
period during the time in “which a properly filed application for State postconviction or other collateral review ... is pending.” 28 U.S.C. § 2244(d)(2). In
this case, however, Trollinger did not file a timely PCRA petition, as his PCRA
petition was filed on September 18, 2014, more than six months after the AEDPA
limitations period had expired. Thus, the limitation period was not tolled, as “a
state court petition ... that is filed following the expiration of the federal [AEDPA]
limitations period cannot toll that period because there is no period remaining to be
tolled.” Danner v. Cameron, 955 F. Supp. 2d 410, 416 (M.D. Pa. 2013) (brackets in
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original) (quoting Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001)); see
also Cordle v. Guarino, 428 F.3d 46, 48 n.4 (1st Cir. 2005); Sorce v. Artuz, 73 F.
Supp. 2d 292, 294 (E.D.N.Y. 1999).
Accordingly, the instant federal habeas petition is time-barred unless there
are grounds for equitable tolling of the AEDPA statute of limitations.
C.

Equitable Tolling

In addition to a period of statutory tolling, a habeas petitioner may be
entitled to equitable tolling of the statute of limitations. See Holland v. Florida,
560 U.S. 631, 645 (2010). “[A] „petitioner‟ is „entitled to equitable tolling‟ only if
he shows „(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way‟ and prevented timely filing.” Id. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner
bears the burden of establishing that he is entitled to the benefit of the doctrine of
equitable tolling. Pace, 544 U.S. at 418.
Trollinger has failed to allege any facts or circumstances to establish that
some extraordinary circumstance stood in the way of his timely filing of the instant
petition, or that he has been pursuing his rights diligently. Accordingly, Trollinger
has failed to demonstrate that he is entitled to any period of equitable tolling.

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D.

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
reason would not find the procedural disposition of this case debatable.
Accordingly, no COA will issue.
III.

Conclusion
For the reasons discussed, the petition for writ of habeas corpus will be

dismissed as untimely.
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A separate Order will be issued.

Dated: May 23, 2017

/s/ William J. Nealon
United States District Judge

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