MILNER v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 6

MEMORANDUM OPINION & ORDER re 4 Petition for Writ of Habeas Corpus, filed by WINFRED A. MILNER directing petitioner to show cause why the petition should not be dismissed as time barred. Signed by Magistrate Judge Robert C. Mitchell on 09/24/2014. (Mitchell, Robert)

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

WINFRED A. MILNER, AP-6690,
Petitioner,

)
)
)
v.
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)
COMMONWEALTH OF PENNSYLVANIA, et al. )
Respondents.
)

2:14-cv-1282

MEMORANDUM and ORDER
Winfred A. Milner has presented a petition for a writ of habeas corpus. For the reasons
set forth below, the petitioner will be directed to show cause if any, why the instant petition is
not subject to dismissal as time barred.
Milner is presently serving a twenty-five to fifty year sentence imposed following his
conviction by a jury of rape, involuntary deviate sexual intercourse, unlawful restraint, simple
assault and criminal conspiracy at No. CC. 1982-05326 in the Court of Common Pleas of
Allegheny County, Pennsylvania. This sentence was imposed on May 20, 1983.1 An appeal was
taken to the Superior Court which Court on April 4, 1985 affirmed the judgment of sentence and
review was denied by the Pennsylvania Supreme Court of October 21, 1985.2
Appended to the petition as Exhibit 9, is the November 15, 2012, Opinion of the Hon.
Robert C. Gallo of the Court of Common Pleas setting forth the further chronology of this
prosecution:
The amended PCRA petition arose from the December 6, 1982 jury verdict
fmding Petitioner guilty of Rape, Involuntarily Deviate Sexual Intercourse,
Unlawful Restraint, Simple Assault and Criminal Conspiracy. Following the
denial of post-trial motions on May 18, 1983, the trial court, per the late
Honorable Robert A. Dauer, sentenced the Petitioner to an aggregate sentence of
25-50 years imprisonment on May 20, 1983. The Pennsylvania Superior Court
affirmed the judgment of sentence on April14, 1985 at No. 773 Pittsburgh 1983.
The Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of
Appeal on October 21, 1985 at No. 252 W.D. Allocatur Docket 1985.
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See: Petition at ¶¶ 1-6 and supporting documentation.
Id. at ¶ 9.
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On March 24, 1997, Petitioner filed a pro se PCRA petition. The Court
appointed counsel who filed an amended PCRA petition. The Court dismissed
the petition as untimely filed on July 21, 1998. On appeal from the Order
dismissing the petition, the Pennsylvania Superior Court remanded the case for
an evidentiary hearing to determine timeliness on August 27, 1999.
Following the evidentiary hearing, Judge Dauer issued a Memorandum Opinion
on March 8, 2001 in which the Court found that the PCRA petition was timely
filed and scheduled a hearing for April l6, 2001.
Following the death of the trial judge, the case was assigned to the undersigned
in 2003. On July 24, 2003, this Court entered an Order of Court ordering
Petitioner to file any amendments to his PCRA petition and a post-conviction
DNA testing motion if desired. The Court further ordered that if no amendments
or testing motions were filed by August 27, 2003, the case would be disposed of.
On August 26, 2003, the Court granted David Cercone, Esquire, leave to
withdraw his appearance because, according to Petitioner's motion, Petitioner
wished to be represented by the Innocence Project of the Benjamin Cardozo Law
School (Petition for Leave to Withdraw as Counsel, August 26, 2003, paragraphs
6-11).
On October 22, 2003, the Court appointed John Kent Lewis, Esquire, to
represent Petitioner and on January 14, 2004, attorney Lewis filed a Motion for
Extension of Time to File Amended PCRA Petition which was granted. On
January 10, 2005, Petitioner filed an amended PCRA petition and the
Commonwealth filed an Answer on April 15, 2005. On September 20, 2006,
attorney Lewis filed a Motion to Withdraw Appearance which the Court granted
and appointed John Elash, Esquire to represent Petitioner on that same date.
On August 31, 2007, an evidentiary hearing took place on the second amended
PCRA petition where Petitioner appeared and was represented by John Elash,
Esquire. On January 1, 2008, attorney Elash filed a Brief in Support of
Amended PCRA Petition. On February 7, 2008, the Commonwealth filed its
Answer to Brief in Support of Amended PCRA Petition. Throughout the
proceedings, Petitioner continued to file various motions pro se or through
counsel.
On December 29, 2008, the Court entered an Order dismissing the Amended
PCRA Petition. The Order clearly stated ''The Petitioner has the right to appeal
to the Superior Court of Pennsylvania within 30 days after the entry of this
Order." The Assistant District Attorney and John Elash, Esquire, were served
with copies of the Order.
On June 13, 2012, Petitioner filed a Notice of Appeal from this Court's Order of
December 29, 2008. On the same date, Petitioner filed a pro se Petition for
Reconsideration of the Court's Order of December 29, 2008. By Order dated
July 10, 2012, the Court dismissed the Petition for Reconsideration because this

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Court lacks jurisdiction while the matter is on appeal to the Superior Court of
Pennsylvania.
Petitioner's Notice of Appeal from the Order of December 29, 2008 was filed
more than 3 1/2 years following the Order from which the appeal was taken. No
reason for the late appeal was provided. The Notice of Appeal is clearly
untimely. Pa.R.A.P. 903.
In his Concise Statement of Matters Complained of on Appeal, Petitioner
complains that the PCRA proceedings were inordinately delayed. Petitioner,
however, did not file his pro se petition under the PCRA until March, 1997. The
proceeding was delayed because Judge Dauer appointed counsel and counsel
filed an amended petition. After Petitioner's counsel filed a Notice of Appeal
from Judge Dauer's dismissal of the PCRA petition, counsel sought leave to
withdraw because she had accepted a position with the District Attorney's office.
New counsel was appointed and filed a brief. The Pennsylvania Superior Court
remanded the case on August 27, 1999. Even while represented by counsel,
Petitioner continued to file pro se motions.
The Court has set forth a brief summary of the procedural history of this case.
This summary, however, does not include all of the motions and petitions filed
by Petitioner either through counsel or pro se. It also does not list all of the
various attorneys who have been appointed to represent Petitioner. Each
withdrawal of appearance by counsel and the appointment of new counsel
resulted in motions for extension of time and amended petitions.
In short, the delays in the matter frequently arose from Petitioner's own actions
or the Court's granting extensions of time to allow attorneys appointed to
represent Petitioner to familiarize themselves with the case, to do necessary
research and case preparation. Other administrative delays were unavoidable.
Petitioner cannot now complain that the PCRA proceedings were unduly delayed
when much of the delay is attributable to his own actions. The remainder of
issues raised in Petitioner's Concise Statement of Matters Complained of on
Appeal have been litigated and resolved in previous proceedings or are patently
without merit.
For all of the foregoing reasons, Petitioner's appeal from the Order of December
29, 2008 should be dismissed as untimely or the Court's Order of December 29,
2008 should be affirmed.
A notice of appeal was filed on June 13, 2012.
On January 25, 2013, the Superior Court wrote:
Upon examination of the original record transmitted to this court, the motion is
GRANTED, such that the instant appeal is QUASHED as untimely filed.
Appellant filed his notice of appeal from a December 29, 2008 order on June 13,
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2012. See Pa.R.A.P. 903(a). Moreover, the record indicates that the December 29,
2008 order was served on appellant's counsel at the time, John Elash, Esquire.3
The instant petition was allegedly executed on July 1, 2014; post-marked on September
16, 2014 and not received by this Court until September 18, 2014.4 In this petition, Milner
contends he is entitled to relief on the following grounds:
1. Police detectives violated Mr. Milner's 6th Amendment right(s) to have his
requested and retained defense counsel (Bruce Carsia) present for
representation at a pre-arranged interrogation.
2. The critical factual issue of whether from the outset Mr. Milner's arrest,
interrogation, conviction would not have occurred but for substantive
ineffectiveness of Bruce A. Carsia, his prior counsel's acquiescing in acts of
subterfuge and waiver.
3. Mr. Milner was denied fundamental fairness, alibi defense and the right to call
his alibi witnesses at trial.
4. It was both a denial of due process by the trial judge to accept a
stipulation/agreement/waiver of substantial medical evidence and the judge
was in error to waive calling a crucial medical/material witness without
holding a colloquy to ascertain if in fact Mr. Milner acquiesced in the waiver.
5. Trial counsel was ineffective for failing to present available character
witnesses who can attest to the defendant's reputation as a peaceful and nonviolent person.
6. Mr. Milner has been denied due process of law, since the trial court admitted
and the jury took into account the unproven elements, nature and essence of
conspiracy in 18 Pa.C.S.A. §903(a)(1), as opposed to procedure/law and rules
applied in 903(e).
7. Trial counsel was ineffective for introducing Milner's prior criminal record,
eliciting information about a trial some six (6) years past, thus prejudicially
destroying Mr. Milner's credibility before the jury this instance.
8. Trial counsel failed to move to suppress and/or object to the introduction of
unverified photograph evidence and exhibits. The trial court erred in admitting
same photographs as evidence.
9. Mr. Milner was denied his constitutional right to a fair trial by both the
Commonwealth's attorney and by his own defense counsel's failure to honor
his request for DNA testing performed on samples taken from the alleged
victim.
10. Mr. Milner was denied due process. He suffered from the lack of a complete
trial transcript and record thus making meaningful appellate review
impossible and now necessitates a new trial.
11. Instantly a reversal of conviction and new trial is justified in this case because
the incomplete trial transcripts and records also the failure by
3

See: Superior Court Docket No. 1062 WDA 2012 available at https://ujsportal.pascourts.us
It strains credulity to believe it took the mail two and a half months to travel a distance of
about 60-65 miles.
4

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Commonwealth's attorney to disclose both the medical reports/material
witnesses held in its exclusive control.
12. It was unconstitutional substantive error and a denial of access to meaningful
appellate review when the state court dismissed his first PCRA petition as
being untimely without first affording Milner either a evidentiary hearing or a
new trial because of the prejudicial hardship visited upon him from having a
incomplete transcript.
13. Mr. Milner was denied a meaningful hearing limited solely to prove that he
was prejudice in his ability to marshal the facts because District Attorney's
office totally withheld names of material witnesses and the physical evidence
relative to DNA testing results performed on the rape kit.
14. The petitioner was denied both procedural and due process at trial and by the
lack of usage of after discovered evidence of judicial and prosecutorial
misconduct on appeal.
15. It was a violation of Mr. Milner's constitutional protection, a denial of due
process, and fundamental fairness to deny his first PCRA petition.
16. Trial counsel was ineffective for failing to interview, investigate and present
testimony from known and available witnesses, and that appellate counsel
John Kent Lewis and John Elash, who replaced him … despite not having the
court's approval to withdraw from the case, or be dismissed from their
representation of Mr. Milner's stated claims.
17. The order appealed from was issued in violation of the Supremacy Clause,
Article VI Section 2 of the United States Constitution.
18. The court must accord the Supremacy Clause of the case and then apply the
new U.S. Supreme Court decisions pursuant to the law of the land … accord
"House v. Bell" per the Harper Rule retroactively relate back to all cases
under appeal, and must grant Mr. Milner an evidentiary hearing … nunc pro
tunc.
19. Milner is held incarcerated by the Pa. Department of Corrections in violation
of the United States Constitution.
20. There was a miscarriage of justice, a break down in the court's judicial
notification procedure that caused a denial of due process.
It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:
(1) A 1-year period of limitation shall apply to the 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 of the time for seeking such review;
(B) The date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;

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(C) 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; or
(D) The date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
(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.
An untimely post-conviction petition is not “properly filed”. Pace v. DiGulglielmo, 544
U.S. 408 (2005).
In the instant case, leave to appeal to the Pennsylvania Supreme Court was denied on
October 21, 1988, certiorari was not sought, and his conviction became final on January 19,
1989. Gonzalez v. Thaler, 132 S.Ct. 641 (2012). The effective date of the Antiterrorism and
Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996
and thus it is applicable here. The petitioner did not seek post-conviction relief until March 24,
1997. That petition was denied as untimely, a decision which was reversed and remanded. On
March 8, 2001, the Court of Common Pleas determined that the petition was timely. An amended
petition was filed on January 10, 2005. Following a hearing the latter petition was dismissed on
December 29, 2008. A notice of appeal was not filed until June 13, 20125 . On January 25, 2013
the Superior Court quashed the appeal as untimely and leave to appeal to the Pennsylvania
Supreme Court was denied on July 3, 2013.6 The instant petition though allegedly executed on
July 1, 2014 was not received in this Court until September 18, 2014. Thus, accepting that the
post-conviction appeal was ultimately deemed untimely as it was filed three and a half years
after the order from which the appeal was taken as well as the fourteen months delay from the
denial of review by the Pennsylvania Supreme Court and the filing here, the petition is time
barred unless petitioner can demonstrate a basis for equitable tolling. Day v. McDonough, 547
U.S. 198(2006); United States v. Bendolph, 5409 F.3d 155 (3d Cir.2005)(en banc).

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Pa.R.App. P. 903 provides that a notice of appeal must be filed within thirty days.
See: Exhibit 1 to the petition.
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ORDER
Accordingly, this 24th day of September, 2014, IT IS ORDERED that on or before
October 15, 2014, the petitioner show cause, if any why the instant petition should not be
dismissed as time barred.
s/ Robert C. Mitchell
United States Magistrate Judge

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