Ricks v. Thomas et al
MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Habeas Corpus filed by Gregory L. Ricks. Signed by Honorable Matthew W. Brann on 5/19/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GREGORY L. RICKS,
SUPT. JOHN THOMAS,
MAY 19, 2017
Gregory L. Ricks, an inmate presently confined at the State Correctional
Institution, Chester, Pennsylvania, (SCI-Chester), filed this pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254. Named as Respondent is SCI-Chester
Superintendent John Thomas. Service of the Petition was previously ordered
Petitioner was convicted on January 20, 2009 of receiving stolen property;
being a person not to possess a firearm; delivery of a controlled substance; and
delivery and possession of a controlled substance following a jury trial in the Court
of Common Pleas of Lycoming County, Pennsylvania.1 See Doc. 13-1, p. 1. On
By way of background, the victim’s girlfriend stole two rifles from his home. The girlfriend
gave the rifles to the Petitioner. Ricks traded one of the rifles for crack cocaine which was
provided to the girlfriend. The other rifle was discovered by Petitioner’s landlord after Ricks
had been evicted from his apartment.
April 3, 2009, Ricks was sentenced to a seven year, three month to fourteen and a
half year term of imprisonment.2 See id. at p. 4. Following a direct appeal to the to
the Superior Court of Pennsylvania, Ricks’ conviction and sentence were affirmed
on March 4, 2010. See id. at p. 5.
Ricks argued on appeal that the evidence was
insufficient to sustain a guilty verdict, that the verdict was against the weight of the
evidence, and that the sentence constituted an abuse of discretion. The Superior
Court deemed the first two arguments waived because they were not addressed in
Ricks’ appellate brief. See id. at p. 11. A further appeal was not pursued.
On April 22, 2010, Ricks filed a petition pursuant to Pennsylvania’s Post
Conviction Relief Act (PCRA) alleging ineffective assistance of counsel for failure
to file a suppression motion with respect to the discovery of the rifle in his
apartment.3 Counsel was appointed to represent the Petitioner. On June 5, 2010,
Petitioner’s court appointed counsel filed a no merit letter in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley,
550 A.2d 213 (Pa. Super. 1988). The sentencing court subsequently dismissed the
PCRA petition on August 10, 2010. See id. at p. 30. Petitioner did not appeal.
Petitioner’s sentence was imposed on March 13, 2009 and amended on April 3, 2009.
See 42 Pa. Cons. Stat. Ann. § 9541 et seq. The PCRA “permits motions for post-conviction
collateral relief for allegations of error, including ineffective assistance of counsel, unlawfully
induced guilty pleas, improper obstruction of rights to appeal by Commonwealth officials, and
violation of constitutional provisions." Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991).
Instead, Petitioner filed a second PCRA action on January 10, 2011 which
alleged the improper seizure of a firearm, failure to properly serve the criminal
complaint, and that the evidence was insufficient to show that the weapon had been
stolen in light of the absence of a serial number on the rifle.
See Doc. 13-1, p.
32. Counsel was again appointed to represent Ricks and a Finley/Turner letter was
thereafter submitted by counsel. The sentencing court denied PCRA relief by
decision dated May 3, 2011. By decision dated February 21, 2012, the Superior
Court affirmed that denial on the basis that Petitioner’s claims were either waived,
previously litigated, or otherwise inadequate. See id. at p. 51. The Supreme Court
of Pennsylvania denied Ricks’ petition for allowance of appeal on October 29,
Petitioner then filed a third PCRA action on November 14, 20124 which
sought relief on the grounds that PCRA counsel’s performance was deficient for
failing to investigate his mental illness; that he was illegally evicted from his
apartment; and that he was not in possession of the rifle found in the apartment.
See id. at p. 65. This action was dismissed as untimely on January 22, 2013.
A fourth PCRA petition filed by Ricks on April 28, 2014 was likewise
dismissed as untimely on July 1, 2014. See id. at p. 69. This action asserted the
evidence was insufficient to establish that he was in possession of a stolen rifle or
See id. at p. 58.
was in possession of a controlled substance. An appeal from that decision was
dismissed by the Superior Court on April 1, 2015. See id. at p. 70.
Petitioner’s pending action before this Court argues that he is entitled to
federal habeas corpus relief on the grounds of newly discovered evidence; denial of
due process because he was permitted to represent himself on appeal despite being
mentally unfit; and ineffective assistance of counsel.
Respondent seeks dismissal of the petition on the grounds that it was
untimely filed and because Ricks failed to exhaust his available state court
remedies. Alternatively, Respondent argues that Petitioner’s arguments are subject
to dismissal for lack of merit.
This matter is now ripe for consideration. Although granted an opportunity
to do so, Petitioner has not filed a reply addressing the Respondent’s arguments for
Respondent contends in part that Petitioner has not filed a timely habeas
corpus action. See Doc. 13, p. 14. Ricks’ pending § 2254 petition is dated May
20, 20155 and will be deemed filed as of that date. See Houston v. Lack, 487 U.S.
266 (1988)(a prisoner’s action is deemed filed at the time it is given to prison
officials for mailing to the Court.
See Doc. 1, p. 14.
Section 2244(d) of Title 28 of the United States Code provides, in relevant
part, as follows:
(d)(1) 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 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.
See generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999).
Under the plain terms of § 2244(d)(1)(A), the period of time for filing a
habeas corpus petition begins to run when the period for direct review expired. See
Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)(“upon conclusion of direct
review of a judgment of conviction, the one year period within which to file a
federal habeas 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).
The running of the limitations period is suspended for the period when
properly-filed state post-conviction proceedings are pending in any state court. See
Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001)(an untimely PCRA petition does
not toll the statute of limitations for a federal habeas corpus petition); Merritt v.
Blaine, 326 F.3d 157, 165-66 & n. 6 (3d Cir. 2003)(federal courts are bound by
state court’s determination that a PCRA petition was untimely and thus not
“properly filed”). However, the period during which a Section 2254 applicant
could have filed a petition for writ of certiorari with the Supreme Court of the
United States from denial of an application for state post conviction or other
collateral relief does not defer the commencement of the limitations period. See
Lawrence v. Florida, 549 U.S. 327, 333-36 (2007).
It is additionally noted that the “one-year filing requirement is a statute of
limitations, not a jurisdictional rule, and thus a habeas petition should not be
dismissed as untimely filed if the petitioner can establish an equitable basis for
tolling the limitations period.” Jones, 195 F.3d at 159, citing Miller v. New Jersey
State Department of Corrections, 145 F.3d 616 (3d Cir. 1998).
“[A] litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his claims diligently; and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005). A habeas petitioner may establish grounds for equitable tolling by
showing that (a) the government has actively misled the petitioner; (b) the rights in
question were timely asserted, but in the wrong forum; or (c) the petitioner has in
some extraordinary way been prevented from asserting his rights.” Jones, 195
F.3d at 159. “In non-capital cases, attorney error, miscalculation, inadequate
research, or other mistakes have not been found to rise to the ‘extraordinary’
circumstances for equitable tolling.” Fahy, 240 F.3d at 244. Nor does equitable
tolling extend to claims of excusable neglect. Irwin v. Dept. Of Veterans’ Affairs,
498 U.S. 89, 96 (1990).
It is undisputed that Petitioner pursued a direct appeal which was denied by
the Superior Court on March 4, 2010. See Doc. 13-1, p. 5. Ricks did not seek
further review from the Supreme Court of Pennsylvania. In accordance with the
principles announced in § 2244(d)(1)(A), Petitioner’ conviction became final on
April 3, 2010 when the period for seeking review from the Pennsylvania Supreme
Court expired and the one year statute of limitations began to run.
Second, the running of the limitations period was thereafter tolled during the
period when Petitioner’s initial PCRA action was pending before the Pennsylvania
state courts (April 22, 2010- August 10, 2010). Based upon those determinations,
the one year limitations period initially ran from April 10, 2010 until April 22,
2010 (12 days) .
The limitations period restarted on August 11, 2010 and ran until December
29, 2010 (approximately 4½ months) when Ricks filed a second PCRA action.
The second PCRA action was terminated on October 29, 2012 when the
Pennsylvania Supreme Court denied allocator. Thus, the limitations period was
tolled from December 29, 2010 to October 29, 2012.
The limitations period again restarted on October 30, 2012. Approximately
two weeks later Ricks filed a third PCRA which was terminated on June 18, 2013.
The clock restarted again June 19, 2013 and undisputably ran for approximately
ten months until Ricks filed a fourth PCRA action on April 15, 2014.
By the time Petitioner initiated his fourth PCRA action the one year
limitations period had expired. Specifically the limitations period initially ran for
12 days; then for 4 months and 18 days; and then for 9 months and 26 days, a
period in excess of one year. Since Ricks’ pending federal petition was initiated
within the § 2244(d) one year limitations period, the request for dismissal on the
basis of untimeliness will be granted.6
“The Antiterrorism and Effective Death Penalty Act of 1996 modified a
federal habeas court’s role in reviewing state prisoner applications in order to
prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given
effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).
Specifically, when a federal-law issue has been adjudicated on the merits by a state
In addressing this argument this Court has determined that the issues of whether Petitioner’s
third and fourth untimely PCRA actions properly tolled the running of the limitations period as
contemplated under the Fahy and Merritt standards does not need to be addressed because this
matter is untimely even if such tolling is allowed.
court, the federal court reverses only when the decision was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).7 See
generally, Knowles v. Mirzayance, 556 U.S. 111, 114 (2009); Gattis v. Snyder, 278
F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir.
2001). The Supreme Court has held that the “contrary to” and “unreasonable
application” clauses of § 2254(d)(1) have independent meaning. Williams v.
Taylor, 529 U.S. 362, 404-405 (2000). As explained in Bell, 535 U.S. at 694:
A federal habeas court may issue the writ under the
‘contrary to’ clause if the state court applies a rule
different from the governing law set forth in our cases, or
if it decides a case differently than we have done on a set
of materially indistinguishable facts. . . . The court may
grant relief under the ‘unreasonable application’ clause if
the state court correctly identifies the governing legal
principle from our decisions but unreasonably applies it
to the facts of the particular case. . . . The focus of the
latter inquiry is on whether the state court’s application
of clearly established federal law is objectively
unreasonable . . . .
Specifically, 28 U.S.C. § 2254(d)(1) provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; . . . .
Furthermore, resolution of factual issues by the state courts are presumed to be
correct unless the petitioner shows by clear and convincing evidence that they are
not. 28 U.S.C. § 2254(e) (1).
In sum, the appropriate inquiry for federal district courts in reviewing the
merits of Section 2254 petitions is whether the state court decisions applied a rule
different from the governing law set forth in United States Supreme Court cases,
decided the case before them differently than the Supreme Court has done on a set
of materially indistinguishable facts, or unreasonably applied Supreme Court
governing principles to the facts of the particular case. See Keller v. Larkins, 251
F.3d 408, 417-18 (3d Cir. 2001) (a district court entertaining a § 2254 action must
first address whether the state court decision was contrary to Supreme Court
precedent); Martini v. Hendricks, 188 F. Supp.2d 505, 510 (D. N.J. 2002) (a §
2254 applicant must show that the state court decision was based on an
unreasonable determination of facts in light of evidence presented in the state court
proceeding). Findings of fact by the state courts are presumed to be correct unless
the petitioner shows by clear and convincing evidence that they are not. 28 U.S.C.
Newly Discovered Evidence
Petitioner raises a vague assertion that he is entitled to federal habeas corpus
relief on the basis of newly discovered evidence. See Doc. 1, ¶ 12, Ground One.
Respondent asserts that in addition to being untimely and unexhausted this
factually undeveloped claim lacks arguable merit. See Doc. 13, p. 11. The
purported newly discovered evidence is not described by Ricks and there is no
indication as to why this unknown new evidence would establish a basis for habeas
corpus relief. Moreover, Petitioner has not shown that the new evidence could not
have previously been ascertained through the exercise of due diligence.
Accordingly, this factually undeveloped claim is subject to dismissal.8
Petitioner indicates that the evidence presented against him was insufficient
because no drugs were found in his possession, the serial number on the rifle had
been obliterated, and the weapon was not discovered until after he had been evicted
from his apartment. The standard of review used by a federal court when
addressing the issue of sufficiency of the evidence is “whether after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Assuming that Petitioner’s claim was timely and properly exhausted, it
would nevertheless be subject to dismissal as lacking arguable merit. It is
It also appears that this vague assertion of new evidence was not previously presented before
the Pennsylvania state courts and as such is subject to dismissal as being procedurally defaulted.
undisputed that there was testimony presented at trial that the person who stole the
rifle gave it to Ricks in exchange for crack cocaine. The rifle, which was found in
Petitioner’s apartment, was identified by the victim despite the absence of a serial
number. Furthermore, Ricks’ landlord testified that he discovered the weapon in
Petitioner’s apartment. Most importantly, Ricks confessed to the crimes.
Based on an application of the standards announced in Jackson to those
factors, there was clearly sufficient evidence that supported the conviction reached
by the jury.
Petitioner asserts that because he is bipolar, a paranoid schizophrenic, and
suffers from manic depression he was incapable of representing himself during the
course of his state appellate proceedings. See Doc. 1, ¶ 12, Ground Two. It is
undisputed that Petitioner was represented by counsel at trial, on direct appeal, and
during his first two PCRA proceedings.9 Thus, this is clearly not a case where a
criminal defendant suffering from mental health problems was forced to represent
himself in violation of his right to counsel.
To the extent that Ricks is challenging the performance of his defense
counsel, in Strickland v. Washington, 466 U.S. 668, 688 (1984), the United States
Ineffective assistance of counsel during collateral proceedings such as a PCRA action is an
insufficient basis for federal habeas corpus relief.
Supreme Court held that to prove a constitutional violation for ineffective
assistance of counsel, a habeas petitioner must meet a two-pronged test. The
petitioner must show “that counsel’s performance was deficient” and that “the
deficient performance prejudiced the defense." Id. at 687; accord Deputy v.
Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994). In Deputy, the United States Court of
Appeals for the Third Circuit also noted that it was not bound by any state court
determinations as to a counsel's performance. Id. at 1494.
To demonstrate deficient performance, a petitioner must show that
“counsel’s performance fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688; Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). A
reviewing court must “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S.
at 689; Jermyn, 266 F.3d at 282; Berryman v. Morton, 100 F.3d 1089, 1094 (3d
Cir. 1996). If, under the circumstances, counsel’s actions might be considered
sound trial strategy, the presumption is not rebutted, Strickland, 466 U.S. at 689,
because “substantial deference is to be accorded counsel’s tactical decisions.”
United States v. Wiener, 127 F. Supp. 2d 645, 648 (M.D. Pa. 2001). A decision
supported by “reasonable professional judgment does not constitute ineffective
assistance of counsel. See Burger v. Kemp, 483 U.S. 776, 794 (1987). It follows
that counsel cannot be deemed ineffective for pursuing a meritless claim. Hartey v.
Vaughn, 186 F.3d 367, 372 (3d Cir. 1999).
A petitioner satisfies the second prong and shows prejudice when “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694;
Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992) “Without proof of both
deficient performance and prejudice to the defense . . . it could not be said that the
sentence or conviction resulted from a breakdown in the adversary process that
rendered the result of the proceeding unreliable, and the sentence or conviction
should stand.” Bell, 535 U.S. at 695 (internal quotations and citation omitted).10
At the time of Petitioner’s state court proceedings, Strickland’s familiar
two-pronged test was the “clearly established federal law” applicable to ineffective
assistance of counsel claims. In addressing Ricks’ present ineffective assistance
claims, the state courts applied essentially the same two-prong test for ineffective
assistance articulated in Strickland. See Doc. 13-1, p. 37.
Specifically, under Pennsylvania state jurisprudence, a three-prong test is
applied to ineffective assistance of counsel claims, but is, in substance, identical to
the Strickland test. See, e.g., Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa.
A court may choose to address the prejudice prong first and reject an ineffective assistance
claim solely on the basis that the defendant was not prejudiced. See Rolan v. Vaughn, 445 F.3d
671, 678 (3d Cir. 2006).
1987). The Third Circuit has held that Pennsylvania’s test for assessing
ineffective assistance of counsel claims is not contrary to Strickland. Jacobs v.
Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005); Werts v. Vaughn, 228 F.3d 178, 204
(3d Cir. 2000). Thus, it cannot be said that the state courts applied rules contrary
to prevailing principles established by the United States Supreme Court for the
adjudication of ineffective assistance claims.
Accordingly, under § 2254(d)(1), the relevant inquiry in addressing the
pending ineffectiveness claims is whether the Pennsylvania state courts’ decisions
involved an unreasonable application of Strickland or were based on an
unreasonable determination of the facts. Jacobs, 395 F.3d at 107 n.9; Werts, 228
F.3d at 204.
Based upon a thorough review of the petition, Ricks has not set forth any
allegations which could support a determination that trial counsel’s performance
was deficient. Ricks has also not demonstrated any resulting prejudice as required
under Strickland i..e., that but for counsel’s alleged unprofessional errors, the result
of the proceeding would have been different.
In conclusion, despite having been afforded a liberal review by this Court,
Ricks’ pending action is time barred and he has not satisfied his burden of
establishing any entitlement to federal habeas corpus.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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