GRAY v. TICE et al

Filing 26

MEMORANDUM OPINION that 6 Petition for Writ of Habeas Corpus filed by EDDIE RAY GRAY will be dismissed, 22 MOTION to Stay filed by EDDIE RAY GRAY will be denied, 21 MOTION to Dismiss 18 Amended Complaint filed by THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA will be granted. An appropriate Order follows. Signed by Judge Susan Paradise Baxter on 4/9/19. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EDDIE RAY GRAY,
Petitioner,
v.
ATTORNEY GENERAL OF
PENNSYLVANIA, et al.,
Respondents.

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Civil Action No. 18-112 Erie

Judge Susan Paradise Baxter

MEMORANDUM1
Pending before the Court is the amended petition for a writ of habeas corpus filed by state
Prisoner Eddie Ray Gray ("Petitioner") pursuant to 28 U.S.C. § 2254. (ECF No. 18). He is challenging
the judgment of sentence imposed upon him in 2013 by the Court of Common Pleas of Warren County
at CP-62-CR-80-2013. Respondents have filed a motion to dismiss (ECF No. 21) the amended the
petition. For the reasons that follow, the Court will grant Respondents' motion, dismiss with prejudice
each of Petitioner's claims, and deny a certificate of appealability.

I.

Relevant Background
On September 2, 2012, Petitioner, who was at the time was an inmate of the Warren County Jail,

disarmed and assaulted a corrections officer with the officer's own taser gun. Following a jury trial in the
Court of Common Pleas of Warren County, Petitioner was convicted of three counts of aggravated
assault, one count of assault by a prisoner, one count of disarming a law enforcement officer, one count
of use or possession of electric or electronic incapacitation device, and one count of criminal attemptescape. On August 16, 2013, the court sentenced him to a term of 182 to 364 months of imprisonment.
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On September 14, 2018, the undersigned was sworn in as a United States District Judge. This action was reassigned to this
Court's docket on September 21, 2018.

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Bernard T. Hessley, Esq., represented Petitioner at trial and in his subsequent direct appeal with
the Superior Court of Pennsylvania. On November 18, 2014, the Superior Court issued an opinion in
which it affirmed Petitioner's judgment of sentence. (ECF No. 21-2 at 3). He did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court. Therefore, his judgment of sentence became
final on December 19, 2014, when the time for him to do so expired. Pa.R.A.P. 1113(a); Gonzalez v.
Thaler, 565 U.S. 134, 149-54 (2012) (a judgment becomes final under 28 U.S.C. § 2244(d)(1)(A) at the
conclusion of direct review or the expiration of time for seeking such review).
The following year, on November 14, 2015, Petitioner filed a pro se petition for relief under
Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq.2 (ECF No. 213 at 1-9). The PCRA court appointed Joan M. Fairchild, Esq., to represent him and it held a hearing on
Petitioner's claims in January 2017. The PCRA court subsequently denied Petitioner relief and he,
through Attorney Fairchild, filed an appeal with the Superior Court. In the appeal, Petitioner challenged
a jury instruction on the charge of criminal attempt to commit escape. Commonwealth v. Gray, No. 213
WDA 2017, 2017 WL 3574024, *1, 6 (Pa. Super. Ct. Aug, 18, 2017). He also claimed that Attorney
Hessley was ineffective for: (1) failing to have him evaluated to determine whether his mental health
issues supported an insanity defense; (2) failing to argue on direct appeal that the trial court erred when
it refused to allow him to withdraw from representation of Petitioner; (3) failing to challenge on direct
appeal the trial court's denial of a motion to recuse; and, (4) failing to challenge on direct appeal the trial
court's denial of his motion for change of venue or change of venire. Id. at *1-5.

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The PCRA petition was docketed in the Court of Common Pleas on November 17, 2015, but this Court will use
November 14, 2015, as the operative date in order to give Petitioner the benefit of the prisoner mailbox rule.

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On August 18, 2017, the Superior Court issued an opinion in which it denied Petitioner's claims
on the merits. Id. at *1-6. On February 22, 2018, the Pennsylvania Supreme Court denied a petition for
allowance of appeal. (ECF No. 21-4 at 3).
Petitioner commenced this habeas case, at the very earliest, on April 10, 2018, which is the date
he certified he placed his original petition for a writ of habeas corpus in the prison mailing system. (ECF
No. 1 at 15). In his amended petition, which he filed on or around November 13, 2018, he claims that his
federal constitutional rights were violated when the trial court denied him his right to self-representation
(ECF No. 18 at 2); that Attorney Hessley was "ineffective for failing to show jury that victim went to
hospital and never mentioned that she was ta[s]ed by Petitioner" (id. at 3); and, the "Attorney General
permitted [a] key witness to commit perjury in regards to taser report generated from device allegedly
possessed by Petitioner and used on Audrey Cline and permitted the false testimony to go uncorrected."
(Id. at 3). Petitioner also claims that Attorney Fairchild, his PCRA counsel, provided him with
ineffective assistance. (Id. at 2-3).
In their motion to dismiss (ECF No. 21), Respondents contend that Petitioner's claims must be
denied because they are untimely under AEDPA's one-year statute of limitations, which is set forth at
28 U.S.C. § 2244(d)(1). Petitioner filed a reply (ECF No. 24), in which he contends that Respondents
erred in calculating the date upon which is judgment of sentence became final.
II.

Discussion
This Court has jurisdiction under 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"). It permits a federal court to entertain an application
for habeas corpus relief from a state prisoner, in relevant part, "only on the ground that he or she is in
custody in violation of the Constitution…of the United States." 28 U.S.C. § 2254(a).

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Before the Court turns to Respondents' argument that Petitioner's claims are untimely, it will
address Petitioner's contention that Attorney Fairchild, his PCRA counsel, was ineffective. That claim is
not cognizable. Petitioner did not have a federal constitutional right to counsel during his PCRA
proceeding, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and, for that reason, he cannot receive
habeas relief on a claim that his PCRA counsel was ineffective, a fact codified by statute at 28 U.S.C.
§ 2254(i), which expressly provides: "[t]he ineffectiveness of counsel during Federal or State collateral
post-conviction proceedings shall not be ground for relief in a proceeding arising under section 2254."
See also Coleman v. Thompson, 501 U.S. 722, 752-53 (1991) ("There is no constitutional right to an
attorney in state post-conviction proceedings.... Consequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.")
As for Petitioner's remaining claims, Respondents are correct that they must be dismissed
because Petitioner filed them outside of AEDPA's statute of limitations. AEDPA requires, with a few
exceptions not applicable here, that habeas corpus claims 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).
As set forth above, Petitioner's judgment of sentence became final on December 19, 2014, when
the 30-day deadline expired for him to file a petition for allowance of appeal with the Pennsylvania
Supreme Court after the Superior Court issued its November 18, 2014, direct-appeal decision.
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 the date he filed it, on
November 14, 2015. By that date, 330 days (from December 19, 2014, to November, 13, 2015) had
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expired from the limitations period. The Petitioner's PCRA proceeding concluded on February 22, 2018,
the date the Supreme Court of Pennsylvania denied his petition for allowance of appeal. Lawrence v.
Florida, 549 U.S. 327, 331-36 (2007) (a petitioner is not entitled to statutory tolling for the period
available to file a petition for writ of certiorari to the United States Supreme Court following state
collateral review). AEDPA's limitations period began to run again the next day, on February 23, 2018.
Since 330 days had already expired from the limitations period, Petitioner had 35 more days–until on or
around March 30, 2018–to file his federal habeas claims. He did not initiate this action until, at the very
earliest, April 10, 2018. Therefore, all of his claims were filed outside the statute of limitations.
In his reply (ECF No. 24), Petitioner argues that his claims are not untimely because his
judgment of sentence became final on February 18, 2015. He reaches that date by adding 90 days (the
amount of time that an appellant has to file a petition for a writ of certiorari with the United States
Supreme Court) to the date the Superior Court issued its November 18, 2014, direct-appeal decision.
Petitioner's calculation is not correct. In Gonzalez, the United States Supreme Court held:
The text of § 2244(d)(1)(A), which marks finality as of "the conclusion of direct review
or the expiration of the time for seeking such review," consists of two prongs. Each
prong–the "conclusion of direct review" and the "expiration of the time for seeking such
review"–relates to a distinct category of petitioners. For petitioners who pursue direct
review all the way to this Court, the judgment becomes final at the "conclusion of direct
review"–when this Court affirms a conviction on the merits or denies a petition for
certiorari. For all other petitioners, the judgment becomes final at the "expiration of the
time for seeking such review"–when the time for pursuing direct review in this Court, or
in state court, expires. We thus agree with the Court of Appeals that because [petitioner]
did not appeal to the State's highest court, his judgment became final when his time for
seeking review with the State's highest court expired.
565 U.S. at 653-54 (emphasis added). Therefore, because Petitioner did not file a petition for allowance
of appeal with the Pennsylvania Supreme Court from the Superior Court's November 18, 2014, directappeal decision, his judgment of sentence became final on December 19, 2014, when the time for him to
do so expired.
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Based upon all of the forgoing, the Court will grant Respondents' motion to dismiss (ECF No.
21) and dismiss each of Petitioner's claims with prejudice. Also pending before the Court is Petitioner's
motion to stay this case until he receives a copy of his trial transcript. (ECF No. 22). That motion is
denied because his trial transcript is not required for this Court to adjudicate whether his claims are
untimely under AEDPA's one-year statute of limitations. See Rule 5(c) of the Rules Governing Section
2254 Cases In The United States District Court (respondents must attach to their answer only those
portions of the transcript they deem relevant, and the district court has the discretion to order
respondents to produce transcripts).

III.

Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate

review of a district court's disposition of a habeas petition. It provides that "[u]nless a circuit justice or
judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from…the
final order in a habeas corpus proceeding in which the detention complained of arises out of process
issued by a State court[.]" 28 U.S.C. § 2253(c)(1)(A). It also provides that "[a] certificate of
appealability may issue...only if the applicant has made a substantial showing of the denial of a
constitutional right." Id. § 2253(c)(2). "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 each

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of Petitioner's claims should be dismissed for the reasons set forth herein. Accordingly, the Court will
not issue a certificate of appealability on any of Petitioner's grounds for relief.
An appropriate Order follows.

Dated: April 9, 2019

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

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