WALTER v. LUTHER et al

Filing 18

MEMORANDUM OPINION & ORDER that the Respondents's motion to dismiss 7 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 2/7/18. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FREDERICK SHELDON WALTER,
Petitioner,
v.
JAMEY LUTHER, et al.,
Respondents.

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Civil Action No. 17-68 Erie

Magistrate Judge Susan Paradise Baxter

OPINION1
Presently before the Court is the Respondents's motion to dismiss (ECF No. 7) the petition for a
writ of habeas corpus that was filed by state prisoner, Frederick Sheldon Walter (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's motion is granted, the petition is
dismissed with prejudice, and a certificate of appealability is denied.

I.
A.

Relevant Background
The Petitioner challenges the judgment of sentence imposed upon him by the Court of Common

Pleas of Venango County in 2007, on his convictions of involuntary deviate sexual intercourse,
aggravated indecent assault of a person less than 16 years of age, criminal attempt to commit aggravated
indecent assault, corruption of minors, and two counts of indecent assault.2 His minor stepdaughter, who

1

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a United
States Magistrate Judge conduct proceedings in this case, including entry of a final judgment.
2

The Petitioner's first trial ended in a mistrial due to jury deadlock. Commonwealth v. Walter, No. 734 WDA 2005, slip op.
at 3 (Pa.Super.Ct. Oct. 12, 2006) ("Walter I"). (ECF No. 7-12 at 1-20). After the Commonwealth indicated its intent to retry
the case, the Petitioner filed a motion to dismiss based upon double jeopardy grounds and because the Commonwealth

1

is identified in the record as "L.W." was the victim. The trial court sentenced him on July 13, 2007. He
is serving an aggregate sentence of 11 ½ to 24 years of imprisonment.3
Michael J. Antkowiak, Esq., was the Petitioner's trial attorney. James Carbone, Esq., who at the
time was an assistant district attorney, prosecuted his case.4
On August 1, 2007, Antkowiak filed a motion to withdraw as counsel and indicated that the
Petitioner had not retained him for an appeal. (ECF No. 7-16 at 1). On August 28, 2007, the trial court
issued an order granting Antkowiak's motion and explaining:
[Antkowiak] has filed a motion to be allowed to withdraw from the case. After discussion
on the record the court concludes that justice requires that we allow him to withdraw.
The [Petitioner] had not indicated an instruction to Mr. Antkowiak before today to
file an appeal. The [Petitioner] and Mr. Antkowiak had agreed that the [Petitioner] would
secure other counsel because the [Petitioner] told Mr. Antkowiak that he was "into him
enough" and at this point could not afford further services. Mr. Antkowiak told us that
they had discussed the appeal but he had not received instructions to perfect the appeal
and it was his understanding that the [Petitioner] had already begun looking for other
counsel, including applying to the Public Defender and also trying to find other
replacement counsel.
Under these circumstances, because Mr. Antkowiak cannot be expected to work
for nothing, the court is constrained to grant the Motion to Withdraw Appearance.
(ECF No. 7-17 at 1-2). The court's order was copied to the Petitioner at his address at SCI Camp Hill.
(Id. at 2). The Petitioner contends that he did not receive the court's order. (ECF No. 11 at 5).
Because the Petitioner did not file a direct appeal to the Superior Court, his judgment of sentence
became final on or around August 13, 2007, which is the date upon which the 30-day time limit for him

committed discovery violations. Walter, No. 734 WDA 2005, slip op. at 1-19. The trial court denied the motion to dismiss
and on October 12, 2006, the Superior Court issued a decision (Walter I) in which it affirmed the trial court's decision.
3

"The original sentence contained a mathematical error in calculating the aggregate sentence. On September 18, 2007, this
error was formally corrected through an amended sentencing order." Commonwealth v. Walter, No. 919 WDA 2014, slip op.
at 2 n.1 (Pa.Super.Ct. July 14, 2015) ("Walter II") (ECF No. 7-30 at 1-8).
4

In some parts of the record, it appears that when the Petitioner or the state court referred to "the district attorney[,]" they
meant Carbone.

2

to file an appeal expired. Pa.R.A.P. 903(a); Gonzalez v. Thaler, 565 U.S. 134, 149-54 (2012) (a
judgment becomes final at the conclusion of direct review or the expiration of time for seeking such
review).
On or around July 9, 2008, the Petitioner filed a timely pro se motion for relief under
Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (ECF No. 7-18 at 1-11).
The Petitioner's PCRA case was pending for a substantial amount of time. Initially, the PCRA court
appointed William Cisek, Esq., to represent him. The Petitioner subsequently retained John C. Lackatos,
Esq., to be his counsel.
On January 28, 2014, the Petitioner, through Lackatos, filed an amended PCRA motion. By this
time, Carbone had been terminated from his position with the Venango County District Attorney's
Office for misconduct that he had committed in other cases that he had prosecuted. (See Report and
Recommendations of the Disciplinary Bd., ECF No. 3-5 at 9). In his amended PCRA motion, the
Petitioner claimed, at paragraphs 5A through 5D, that Antkowiak provided ineffective assistance for the
following four reasons:
A. he "[f]ailed to lodge an objection to the district attorney's claim that the [Petitioner]
threatened to harm the victim's mother if the victim did not recant her claim of sexual
abuse by the [Petitioner]. The statement was made during the sentencing hearing in this
matter where no evidence of this was presented by the Commonwealth at the time for
trial;"
B. he "[f]ailed to demand a mistrial by the clear discovery violation perpetrated by the
District Attorney when said District Attorney admitted to the Court that he may have
'…taken an original document' from the Venango County Children and Youth Services
file and presented it as evidence at the time of trial without having provided said
discovery documentation to defense counsel;"
C. he "[f]ailed to demand a mistrial by the clear discovery violation perpetrated by the
District Attorney when said District Attorney attempted to bring in as evidence pages
from the victim's diary despite the fact that the District Attorney failed to serve the
discovery on the defense;" and
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D. he "[f]ailed to demand a mistrial by the clear discovery violation perpetrated by the
District Attorney when said District Attorney attempted to bring in an additional five
pages of a police report when those five additional pages were never provided to the
defense."
(ECF No. 7-19 at 2).
The PCRA court held a hearing on the Petitioner's claims on April 24, 2014, and on that same
date it issued Findings of Fact. (ECF No. 7-20 at 1-4). It dismissed the amended PCRA motion the
following day, on April 25, 2014. (ECF No. 7-21).
In denying Claim 5A, the PCRA court held that the Petitioner failed to establish that he was
prejudiced by Antkowiak's decision not to object to the statements made by Carbone at the sentencing
hearing. See Walter II, No. 919 WDA 2014, slip op. at 4. In disposing of the allegations that the
Petitioner made at paragraphs 5B and 5C, the PCRA court first explained that these allegations were
regarding what was introduced at the Petitioner's trial as Exhibit 7. (ECF No. 7-30 at 2). It was a letter
written by the victim and dated January 1, 2005, and the PCRA court described it as "something like a
diary[.]" (Id.) The trial court had permitted its introduction, over Antkowiak's objection, as a prior
consistent statement. (Id.) The PCRA court held that there was no discovery violation with respect to
this document, and it noted that Antkowiak "had been afforded opportunities by the Court to go to CYS,
review the files and then have the court order documents produced as necessary." (Id.) The Petitioner
had alleged that Carbone's misconduct in another case supported a contention that Carbone had removed
documents from the CYS files in his case. The PCRA court rejected the Petitioner's allegation.
Specifically, it found that the Petitioner's allegation that Carbone may have removed documents "from
the CYS files simply is not supported on the record." (Id. at 2).
Counsel has established that the [Carbone] said that on a prior occasion, not related to
this case, he may have removed an original document from the CYS file but he had not
removed one in this case. In fact, he told the Court that a CYS worker was at this [sic]
elbow the entire time that he reviewed the file. Further, We did afford [Antkowiak] the
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opportunity to examine the exhibit and counsel did move for a mistrial and We denied the
mistrial because the exhibit was properly in evidence and there was no discovery
violation.
(ECF No. 7-20 at 2-3.)
Finally, in disposing of the allegations that the Petitioner made at Claim 5D, the PCRA court
held:
…[Claim] 5D refers to the testimony of Trooper Tanner, who was the arresting
officer in this case, and the victim prior to the preliminary hearing in this case did attempt
to recant and there was substantial evidence as to what happened at that time. That
evidence was developed fully at trial and was part of the defense theory as it bore upon
the credibility of the victim. Trooper Tanner did refer to a supplemental police report that
he had prepared that is now in evidence as PCRA Exhibit 1 and in Trooper Tanner's
testimony he simply referenced in passing that he had put the material as to the
recantation prior to and at the preliminary hearing in his supplemental report. It appeared
to the Court at that time that defense counsel had not seen the supplemental report, We
then gave defense counsel the opportunity to examine the report. Counsel did not raise
any issue at the time as to the substance in the report that could have in some way either
as exonerating evidence or as some other form of evidence which could have helped the
defense theory. Had counsel done that at the time of trial We would have afforded
appropriate relief. Even at this late date counsel for the petitioner has not pointed to
anything in Exhibit 1 which would impact the trial tactics or which would impact the
outcome of the trial and as the Commonwealth has correctly argued the concept that the
victim had attempted to recant was dealt with extensively in the trial.
(Id. at 7-20 at 3-4).
The Petitioner subsequently applied to the Venango County Public Defender's Office for
appellate counsel and his case was assigned to Charles R. Terwilliger, Jr., who represented him in his
appeal to the Superior Court. By the time the Petitioner was pursuing his appeal, the Office of
Disciplinary Counsel of the Disciplinary Board of the Supreme Court of Pennsylvania had charged
Carbone "with violating multiple Rules of Professional Conduct and one Rule of Disciplinary
Enforcement arising out the allegations of prosecutorial misconduct" in three of the cases he had
prosecuted. (Report and Recommendations of the Disciplinary Bd., ECF No. 3-5 at 13).

5

The Petitioner's case was not one of the cases at issue in that disciplinary action. On June 17, 2015, the
Office of Disciplinary Counsel and the Hearing Committee recommended that Carbone be disbarred.5
(Id.)
A little less than one month later, on July 14, 2015, the Superior Court issued its decision,
Walter II, in which it affirmed the PCRA's court's decision to deny the Petitioner's request for postconviction relief. In denying Claim 5A, it held:
[The Petitioner] contends that trial counsel was ineffective for failing to object to
statements made by the prosecutor at sentencing. Specifically, [the Petitioner] highlights
the prosecutor's assertion that [the Petitioner] threatened the minor victim that he would
harm her mother if she told anyone about the abuse he perpetrated against her. [The
Petitioner] contends that this assertion is unsupported by any evidence of record.
We need not reach the substance of this argument, as we agree with the PCRA
court that [the Petitioner] has failed to establish that he was prejudiced by any such
failure on trial counsel's part. The sentence imposed by the trial court consisted of
standard range sentences and mandatory minimums. In imposing this sentence, the trial
court stated[:]

5

In its Report and Recommendations, the Disciplinary Board summarized Carbone's misconduct as follows:
In three separate cases, [Carbone] engaged in various forms of prosecutorial misconduct. During the
prosecution of Anderson, [Carbone] violated a court order by interviewing one of the alleged victims
without the presence of a responsible person from the Polk Center [State Hospital]. He then misrepresented
to the court his contact with the alleged victim. [Carbone] utilized intemperate language and made a
profane hand gesture during the closing argument in the second trial of Anderson, resulting in reversal of
Anderson's conviction. [Carbone's] conduct was particularly harmful for the Commonwealth and for two
alleged victims, as the charges against Anderson as to those alleged victims were dismissed on the basis of
double jeopardy.
During the prosecution of Culver, [Carbone] made misrepresentations during his opening
statement as the evidence, including evidence that did not exist. During closing argument, [Carbone]
mischaracterized the existence of expert witnesses. [Carbone] attempted to intimidate the defendant and his
counsel by repeatedly yelling, menacing, and pointing in their faces.
In the Sundol prosecution, [Carbone] discussed Sundol's case with her, without the knowledge or
consent of Sundol's counsel, resulting in the Court disqualifying [Carbone] as counsel for the matter.

(Report and Recommendations of the Disciplinary Bd., ECF No. 3-5 at 14).

6

Alright,…the theme of the sentencing here is going to be standard range
sentences. The sentences are going to be driven by guidelines. I don't view
your behaviour as much different from what the law contemplates when
the guidelines were established. I'm sentencing to the findings of the jury
and again, as I've just stated, the sentences are all in the standard range of
the guidelines.
--Accepting the jury's findings as fact in this case you've done incredible
damage and the damage has essentially ripped your family.
N.T., Sentencing, 7/13/07, at 137-38.
Initially, we note that "it is well-settled that arguments of counsel are not
evidence." Com. v. Puksar, 951 A.2d 267, 280 (Pa. 2008). Even assuming that the
prosecutor's assertion that [the Petitioner] threatened the victim's mother lacked
evidentiary support, there is no evidence that the trial court was influenced by the
prosecutor's assertion. Indeed, the trial court was well aware of all of the allegations in
the case anyway, as it had sat through the trial of the case and heard the testimony that
allegedly supported the prosecutor's argument. [The Petitioner] has therefore failed to
establish the third prong of his ineffective assistance of counsel claim [prejudice]. Thus,
we conclude that no relief is due on [Claim 5A].
Walter II, No 919 WDA 2014, slip op. at 4-5.
In disposing of the Petitioner's remaining claims (Claims 5B-5D), the Superior Court first set
forth the Petitioner's allegations:
[The Petitioner] argues that the PCRA court erred in concluding that trial counsel
was not ineffective for failing to request a mistrial based upon the cumulative effect of
multiple alleged discovery violations on the part of the Commonwealth.
Importantly, [the Petitioner's] argument is not that trial counsel failed to request a
mistrial for each of the underlying alleged discovery violations. [He] concedes that trial
counsel requested a mistrial each time he concluded that the Commonwealth had failed to
produce in discovery evidence that it was presenting at trial. See Appellant's Brief, at 9.
[The Petitioner's] argument is that trial counsel failed to request a mistrial based upon the
cumulative effect of all of the alleged discovery violations. See id.
Id. at 5. The Superior Court then explained that "no number of failed claims may collectively warrant
relief if they fail to do so individually. However, we have clarified that this principle applies to claims
that fail because of lack of merit or arguable merit. When the failure of individual claims is ground in
lack of prejudice, then the cumulative prejudice from those individual claims may properly be assessed."
7

Id. at 6 (quoting Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (internal quotations and citations
omitted). The Petitioner was not entitled to PCRA relief for the following reasons, the Superior Court
held:
[The Petitioner] identifies two separate instances of alleged discovery violations.
First, [he] points to a diary entry of the victim's, which the Commonwealth entered into
evidence at trial. Trial counsel objected, stating that he had not received the diary entry
from the Commonwealth in discovery. The trial court overruled the objection, concluding
that the Commonwealth had not committed a discovery violation. See N.T., Trial, 3/6/07,
at 183. The trial court premised this conclusion upon finding that the prosecutor was
credible in his claim that diary entry was in the Children and Youth file. See id., at 182.
Therefore, this claim failed for a lack of merit, not a lack of prejudice, and cannot be
included in a claim of cumulative prejudice.
[The Petitioner] contends that subsequent disciplinary actions taken against the
prosecutor contradicts the trial court's credibility findings. The PCRA court notes that,
while the prosecutor has admitted to removing original documents from the Children and
Youth file in other cases, he denied removing the diary entry. See N.T., Trial, 3/8/07, at
86. The PCRA court found that [the Petitioner's] allegation that the prosecutor had
"secreted the [document] from the CYS files simply is not supported on this record."
N.T., PCRA hearing, 4/24/14, at 49. We cannot conclude that this factual finding is an
abuse of discretion, and therefore, conclude that [the Petitioner's] argument does not alter
the trial court's initial ruling that no discovery violation occurred.
This leaves [the Petitioner] with only a single instance of a discovery violation
objection that the trial court overruled based upon a lack of prejudice: a State Trooper's
supplemental report regarding recantation by the victim which was not provided to [the
Petitioner] during discovery. Trial counsel objected and requested that it be excluded
from evidence. See N.T., Trial, 3/8/07, at 332. The trial court provided a copy of the
report to trial counsel, and stated "you show me prejudice we'll deal with it." Id., at 333.
Thus, this discovery violation could provide a partial basis for a cumulative prejudice
claim. However, as noted above, the only other alleged discovery violation was not
dismissed for lack of prejudice, but due to a finding that no violation had occurred. As a
result, [the Petitioner's] argument that the cumulative effect of multiple alleged violations
has no merit, and affords him no relief on appeal.
Having found that the PCRA court did not commit an error of law, we affirm the
order denying [the Petitioner] relief on his PCRA petition.
Id. at 7-8.
The Petitioner did not file a petition for allowance of appeal with the Supreme Court of
Pennsylvania. Accordingly, his PCRA proceeding concluded on or around August 15, 2015, when the
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time for him to do so expired. Swartz v. Meyers, 204 F.3d 417, 420-21 (3d Cir. 2000). The Petitioner
contends that on October 19, 2015, he received from the Public Defender a petition to withdraw as
counsel, and that was also the date he first learned that the Superior Court had issued Walter II. (ECF
No. 3 at 15, 51; ECF No. 11 at 8).
The Petitioner filed his petition for a writ of habeas corpus with this Court, at the very earliest,
on April 19, 2017, which is the date he placed it in the prison mailing system. It appears that he is
raising the same claims of ineffective assistance (and the underlying claims of prosecutorial misconduct)
that the Superior Court denied in Walter II. He may also be contending that his second trial violated the
Double Jeopardy Clause, a claim the Superior Court denied in Walter I.
The Respondents filed a motion to dismiss (ECF No. 7) on the grounds that the Petitioner's
claims are untimely under AEDPA's one-year statute of limitations. In his reply (ECF No. 11), the
Petitioner contends that he is entitled to equitable tolling and that he should be exempted from the
AEDPA's statute of limitations because he is actually innocent.

B.

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

petition outside of AEDPA's statute of limitations. AEDPA requires, with a few exceptions not
applicable here, that habeas corpus claims under 28 U.S.C. § 2254 be filed within one year of the date
the petitioner's judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). It also provides that
"[t]he 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)(2).

9

As set forth above, the Petitioner's judgment of sentence became final on or around
August 13, 2007. Therefore, AEDPA's limitation period began to run on that date. In accordance with
§ 2244(d)(2), his PCRA petition statutorily tolled AEDPA's statute of limitations beginning on or around
July 9, 2008. By that date, approximately 331 days (from August 13, 2007, to July 8, 2008) had expired
from the limitations period. The Petitioner's PCRA proceeding concluded on or around
August 15, 2015, and AEDPA's limitations period began to run again the next day, on August 16, 2015.
Since 331 days had already expired from the limitations period, the Petitioner had 34 more days–until on
or around September 19, 2015–to file a timely federal habeas petition. He did initiate this action until,
at the very earliest, April 19, 2017, and, therefore, his claims are untimely by approximately 578 days if
no equitable tolling applies.
The 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. See also United
States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013); Ross v. Varano, 712 F.3d 784, 798-804 (3d Cir.
2013); Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). "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 United States Court of Appeals for the Third Circuit has explained:
"There are no bright lines in determining whether equitable tolling is warranted in a given
case." Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). Nevertheless, "courts must
be sparing in their use of equitable tolling," Seitzinger v. Reading Hosp. & Medical Ctr.,
165 F.3d 236, 239 (3d Cir. 1999), and should do so "only when the principles of equity
would make the right application of a limitation period unfair." Miller [v. New Jersey
State Dept. of Corr.], 145 F.3d [616, 618 (3d Cir. 1998)].
Sistrunk, 674 F.3d at 190.
10

It appears that the Petitioner is arguing that he entitled to equitable tolling to cover two periods in
which AEDPA's statute of limitations was running. First, it may be that he is contending that he entitled
to some tolling after his judgment of sentence became final because he was not aware that the trial court
had permitted Antkowiak to withdraw as his counsel. Second, it may be that he is contending that, after
his PCRA proceeding (and statutory tolling) had concluded, he is entitled to equitable tolling until
October 19, 2015, because that is the date he learned that the Superior Court had issued Walter II.
The Court will assume without deciding that the Petitioner is entitled to equitable tolling
(1) from the date he his judgment of sentence became final (on or around August 13, 2007), until the
date he filed his pro se PCRA petition on July 9, 2008, (at which time AEDPA's statute of limitations
was statutorily tolled under § 2244(d)(2) and continued to be statutorily tolled until August 13, 2015),
and, (2) from the date his PCRA proceeding concluded on or around August 13, 2015, until he received
notice of the Superior Court's decision on October 19, 2015. Calculating the statute of limitations under
these assumptions, the Petitioner would have had one year from the date he learned that the Superior
Court had denied his PCRA appeal (that is, until October 19, 2016) to file his federal habeas claims.
Thus, even with the benefit of significant equitable tolling, his claims are still untimely (by
approximately 181 days).6

6

There is no basis to extend to the Petitioner equitable tolling for any of the time that expired between October 19, 2015, to
the date he filed his federal habeas petition. The Petitioner may not have understood the ramifications of waiting so long to
seek federal habeas review with this Court, but it is well established that a petitioner's "lack of legal knowledge or legal
training does not alone justify equitable tolling." Ross, 712 F.3d at 799-800 (citing Brown v. Shannon, 322 F.3d 768, 774 (3d
Cir. 2003) (equitable tolling not justified where petitioner had one month left in limitations period in which he could have
filed "at least a basic pro se habeas petition" at the time that petitioner's attorney informed him that he would not file an
appeal in state court on his behalf and could no longer adequately represent him); and Doe v. Menefee, 391 F.3d 147, 177 (2d
Cir. 2004) ("Given that we expect pro se petitioners to know when the limitations period expires...such inadvertence on Doe's
part cannot constitute reasonable diligence.")).

11

The Petitioner also argues that he should be exempted from AEDPA's statute of limitations
because is innocent. In McQuiggin v. Perkins, 569 U.S. 383 (2013), the Supreme Court recognized that
the actual innocence gateway to federal habeas review developed in Schlup v. Delo, 513 U.S. 298
(1995) extends to cases where a petitioner's claims would otherwise be barred by the expiration of the
one-year statute of limitations prescribed by AEDPA. It explained, however, that the "actual innocence"
exception applies only to a "severely confined category" of cases, namely, those matters where the
petitioner produces "new evidence" that "shows 'it is more likely than not that no reasonable juror would
have convicted [the petitioner].'" Id. at 395 (quoting Schlup, 513 U.S. at 329) (bracketed text added in
McQuiggin). The Supreme Court also cautioned that "tenable actual-innocence gateway pleas are
rare[,]" id. at 386, and that "[t]he gateway should open only when a petition presents 'evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless constitutional error.'" Id. at 401 (quoting Schlup, 513
U.S. at 316).
The Court cannot conclude that this is one of those rare cases where the actual-innocence
gateway applies. The Petitioner relies upon the fact that Carbone was subsequently disbarred for his
misconduct in other cases. However, the Petitioner did not direct this Court to information that came out
during the disbarment proceedings or during his PCRA proceeding that would qualify as new evidence
of his actual innocence. Therefore, there is no basis to exempt him from AEDPA's one-year statute of
limitations under the Supreme Court's holding in McQuiggin.

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
12

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 claims should be dismissed as untimely. Accordingly, a certificate of
appealability is denied.

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

Dated: February 7, 2018

/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

FREDERICK SHELDON WALTER,
Petitioner,
v.
JAMEY LUTHER, et al.,
Respondents.

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Civil Action No. 17-68 Erie

Magistrate Judge Susan Paradise Baxter

ORDER
AND NOW, this 7th day of February, 2018, IT IS HEREBY ORDERED that the Respondents's
motion to dismiss ([ECF No. 7) 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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