MOTT v. FERGUSON et al

Filing 16

MEMORANDUM OPINION & ORDER that the Respondents' motion to dismiss 12 is GRANTED, the petition is DISMISSED with prejudice, and a certificate of appealability it DENIED. The Clerk of Court shall mark this case CLOSED. Signed by Magistrate Judge Susan Paradise Baxter on 6/29/17. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD A. MOTT,
Petitioner,
v.
TAMMY FERGUSON,
et al.,
Respondents.

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Civil Action No. 16-252 Erie

Magistrate Judge Susan Paradise Baxter

OPINION1
Presently before Court is the Respondents' motion to dismiss [ECF No. 12] the petition for a writ
of habeas corpus filed by state prisoner, Richard A. Mott (the "Petitioner"), pursuant to 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For the
reasons set forth below, the Respondents' motion is granted, the petition is dismissed with prejudice, and
a certificate of appealability is denied.

I.
A.

Relevant Background
In this case, the Petitioner challenges the judgment of sentence imposed upon him by the Court

of Common Pleas of Crawford County on February 2, 2009. The Superior Court of Pennsylvania
summarized the relevant background of this case as follows:
On November 3, 2008, [the Petitioner] entered a guilty plea to one count each of
rape of a child and incest. [His] conviction stems from his sexual abuse of his then
twelve-year-old daughter, who had been sexually assaulted previously by three other
men, including [the Petitioner's] son. The plea bargain contained no agreement as to
sentencing. At the February 2, 2009 sentencing hearing, counsel for [the Petitioner]
requested that the court impose the ten-year mandatory minimum sentence on the rape of
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In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a
U.S. Magistrate Judge conduct proceedings in this case, including entry of a final judgment.

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a child count. The court declined, and imposed a sentence of incarceration of not less
than twenty nor more forty years on this count, with a concurrent term of not less than
two nor more than ten years on the incest count. [The Petitioner] filed a direct appeal
challenging the discretionary aspects of his sentence, and this Court affirmed the
judgment of sentence on February 5, 2010. (See Commonwealth v. Mott, No. 313 WDA
2009, unpublished memorandum at *1-3 (Pa.Super. filed Feb. 5, 2010)) ["Mott I"].
Commonwealth v. Mott, No. 1536 WDA 2015, 2016 WL 832525, *1 (Pa.Super.Ct. Mar. 2, 2016)
("Mott II") (footnotes omitted).
The Petitioner's judgment of sentence became final under both state and federal law on or around
March 8, 2010, when his time to file a petition for allowance of appeal with the Pennsylvania Supreme
Court expired. Id.; Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3) ("a judgment 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 the expiration of time for seeking the review."); Gonzalez
v. Thaler, 565 U.S. 134, 149-54 (2012) (under relevant federal law a judgment becomes final at the
conclusion of direct review or the expiration of time for seeking such review).
On July 6, 2015, the Petitioner filed a pro se motion for relief under Pennsylvania's Post
Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. The court appointed him counsel, who filed
an amended PCRA motion asserting a right to relief based on the United States Supreme Court's
decision in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151 (2013). "In Alleyne, the Supreme Court
overruled its prior precedent, Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524
(2002), and clarified that, under the Sixth Amendment, any facts that increase the prescribed range of
penalties to which a criminal defendant is exposed are elements of the crime and must be found beyond
a reasonable doubt." United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014) (citations and internal
quotations omitted).

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The PCRA court dismissed the Petitioner's motion because it determined that he filed it outside
of the applicable state-law statute of limitations.2 The PCRA's statute of limitations is codified at
42 Pa.C.S. § 9545(b) and it provides, in relevant part:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
--(iii) the right asserted is a constitutional right that was recognized by the
Supreme Court of the United States or the Supreme Court of Pennsylvania
after the time period provided in this section and has been held by that
court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60
days of the date the claim could have been presented.
42 Pa.C.S. § 9545(b)(1)-(2).
On March 2, 2016, the Superior Court issued a Memorandum and Order in which it affirmed the
PCRA court's decision. It held:
Because [the Petitioner] filed the instant petition on July 6, 2015, it is untimely on its
face, and the PCRA court lacked jurisdiction to review it unless he pleaded and proved
one of the statutory exceptions to the time-bar. See id. at § 9545(b)(l)(i)-(iii).
--Here, [the Petitioner] claims the benefit of a newly-recognized retroactivelyapplied constitutional right to relief predicated on the United States Supreme Court's
decision in Alleyne, supra. (See Appellant's Brief, at 8, 11); see also 42 Pa.C.S.A.
§ 9545(b)(1)(iii). He asserts that Alleyne applies retroactively to this case, and requests
that this Court remand for re-sentencing on the rape of a child conviction without regard
to the mandatory minimum term of incarceration. (See Appellant's Brief, at 17).
--[I]n [Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014)], the appellant also
argued the applicability of section 9545(b)(1)(iii) to his patently untimely PCRA
petition…. Specifically, he averred that the Alleyne decision announced a new
constitutional right that applies retroactively to cases on collateral review. See id. at 99394. This Court disagreed, explaining:

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"The PCRA timeliness requirements are jurisdictional in nature and, accordingly, a court cannot hear untimely
PCRA petitions." Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004) (citations omitted).

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Even assuming that Alleyne did announce a new constitutional right,
neither our Supreme Court, nor the United States Supreme Court has held
that Alleyne is to be applied retroactively to cases in which the judgment
of sentence had become final. This is fatal to Appellant's argument
regarding the PCRA time-bar. This Court has recognized that a new rule
of constitutional law is applied retroactively to cases on collateral review
only if the United States Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases. Therefore, Appellant
has failed to satisfy the new constitutional right exception to the time-bar.
Id. at 995-96 (quotation marks, footnote, and citations omitted); see also Commonwealth
v. Riggle, 119 A.3d 1058, 1062, 1067 (Pa.Super. 2015) (stating "Alleyne is not entitled to
retroactive effect in [the] PCRA setting" even with a timely filed petition). Therefore,
prior precedent of this Court makes clear that claims based on retroactive application of
Alleyne in the PCRA setting fail.
Furthermore, we also note that the United States Supreme Court decided Alleyne
on June 17, 2013. [The Petitioner] filed the instant PCRA petition more than two years
later, on July 6, 2015. Therefore, [the Petitioner] has failed to comply with the PCRA's
sixty-day rule. See 42 Pa.C.S.A. § 9545(b)(2). [The Petitioner's] petition would fail for
this reason as well.
In sum, we conclude that [The Petitioner] has not met his burden of proving his
untimely petition fits within one of the three exceptions to the PCRA's jurisdictional
time-bar. See Jones, supra at 17. Accordingly, the PCRA court properly dismissed [his]
petition without a hearing because it is untimely with no exception to the time-bar
pleaded or proven. See Jackson, supra at 519.
Mott II, No. 1536 WDA 2015, 2016 WL 832525 *2 (footnotes omitted).
Following the Superior Court's decision, the Petitioner filed a petition for allowance of appeal
with the Supreme Court of Pennsylvania. That court denied it in a per curiam order dated July 26, 2016.
The Petitioner filed his petition for a writ of habeas corpus with this Court, at the very earliest,
on October 17, 2016, which is the date he averred he placed it in the prison mailing system. He claims
that his sentence is unconstitutional and explains that he is raising the same claim that he raised to the
Superior Court in his PCRA appeal.
The Respondents filed a motion to dismiss [ECF No. 12] on the grounds that the Petitioner's
claim is untimely under AEDPA's one-year statute of limitations. The Petitioner did not file a reply.
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B.

Discussion
The Respondents are correct that the Petitioner's claim must be dismissed because he filed his

petition outside AEDPA's statute of limitations. It requires, with a few exceptions not applicable here,
that federal habeas claim must be filed with the district court within one year of the date the petitioner's
judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). As set forth above, the Petitioner's
judgment of sentence became final on March 8, 2010. Therefore, he had until March 8, 2011, to file a
timely federal habeas claim with this Court. He did not file his petition until October 17, 2016, so it is
untimely by more than five years.3
AEDPA does provide that its one-year statute of limitations may also run from "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[.]" 28 U.S.C. §2244(d)(1)(C). This triggering date does not apply to this case. The Supreme
Court has not held that Alleyne applies retroactively to cases on collateral review and the United States
Court of Appeals for the Third Circuit has expressly held that it does not. United States v. Reyes, 755
F.3d at 212-13; United States v. Winkelman, 746 F.3d 134 (3d Cir. 2014).

C.

Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a

certificate of appealability for appellate review of a district court's disposition of a habeas petition. It
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The United States Supreme Court has held that AEDPA's statute-of-limitations period "is subject to equitable tolling
in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled to equitable tolling only if he
shows both that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and
prevented timely filing. Id. at 649. "This conjunctive standard requires showing both elements before we will permit tolling."
Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original). The Petitioner does not argue that he is entitled
to equitable tolling.

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provides that "[a] certificate of appealability may issue...only if the applicant has made a substantial
showing of the denial of a constitutional right." "When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of
appealability] 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). Applying that standard here, jurists of reason would not find it
debatable whether the Petitioner's claim should be dismissed as untimely. Accordingly, a certificate of
appealability is denied.

II.
For the reasons set forth above, the Respondents' motion to dismiss is granted, the petition is
dismissed with prejudice, and a certificate of appealability is denied.
An appropriate Order follows.

Dated: June 29, 2017

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD A. MOTT,
Petitioner,
v.
TAMMY FERGUSON,
et al.,
Respondents.

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)
)
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)
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Civil Action No. 16-252 Erie

Magistrate Judge Susan Paradise Baxter

ORDER
AND NOW, this 29th day of June, 2017, IT IS HEREBY ORDERED that the Respondents'
motion to dismiss [ECF No. 12] is GRANTED, the petition is DISMISSED with prejudice, and a
certificate of appealability it DENIED. The Clerk of Court shall mark this case CLOSED.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

cc:

Notice by ECF to counsel of record and by U.S. mail the Petitioner at his address of record

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