DIXON v. KANE et al

Filing 65

ORDER dismissing 9 Amended Petition for Writ of Habeas Corpus; denying certificate of appealability; and adopting 60 Report and Recommendation of Chief Magistrate Judge Kelly as the opinion of the Court. The Clerk shall mark this case closed. Signed by Judge David S. Cercone on 4/17/17. (Attachments: # 1 Appendix) (njt)

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

TEREL DARNELL DIXON,

)
)
)
vs.
)
)
)
MICHAEL WENEROWICZ, (Supt. Of
S.C.I. Graterford); JOHN WETZEL,
)
(Deputy Sec. of P.A. D.O.C.); KATHLEEN )
KANE, Attorney General's Office;
)
PENNSYLVANIA DEPARTMENT OF
)
CORRECTIONS; TREVOR WINGARD, )
)
(Supt. of S.C.I. Somerset); RAYMOND
)
SOBINA, (Deputy Dir. of West. Region),
DISTRICT ATTORNEY OF BEAVER
)
COUNTY,
)
Respondents. )
Petitioner,

Civil Action No. 14-1741
Judge David Stewart Cercone/
Chief Magistrate Judge Maureen P. Kelly

ORDER

Terel Darnell Dixon ("Petitioner") is a state prisoner who has filed an Amended Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"),
ECF No. 9, seeking to attack his state court conviction for third degree murder. ·
The case was referred to Chief Magistrate Judge Maureen Kelly in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(l), and Local Civil Rules 72.C and D.
Chief Magistrate Judge Kelly's Report and Recommendation, ECF No. 60, filed on
January 24, 2017, recommended that the Amended Petition be dismissed because Petitioner
violated the AEDP A one year statute of limitations by three days and that he failed to carry his
burden to show entitlement to equitable tolling. Petitioner was informed that he could file
Objections to the Report. After being granted an extension of time in which to file his

Objections, Petitioner filed a 21 page Objection to the Report, ECF No. 63 and a 17 page Brief in
Support of Objections, ECF No. 64.
Nothing in Petitioner's Objections or in the Brief in Support merits rejection of the Report.
A. The Post Sentence Motion did not statutorily toll the AEDP A limitations period.
We note that in his Brief in Support of his Amended Petition, Petitioner conceded that this
case was not filed within one year of his conviction becoming final due to his Petition being filed
two days beyond the one year statute oflimitations. ECF No. 13 at 4 ("As such, the Petition will
appear to be untimely on its face by approximately 2 (two) days."). Accordingly, the Report
conducted its own analysis of the AEDPA statute oflimitations and found that indeed the case was
filed three days late. The Report further concluded that other than the first Post Conviction Relief
Act ("PCRA") Petition, which statutorily tolled the AEDPA statute of limitations, Petitioner was
not entitled to any other statutory tolling. The Report also concluded that Petitioner failed to show
entitlement to any equitable tolling.
In his Objections for the first time, Petition contends that this case was timely filed, arguing
for the first time in this case that the pro se Post Sentence Motion to Modify and Reduce Sentence
(the "Post Sentence Motion") filed in the Court of Common Pleas on February 9, 2012, was, under
state law, a properly filed first PCRA Petition, and, as such, statutorily tolled the AEDP A statute
oflimitations during its pendency from February 9, 2012 until February 21, 2012 when the Court
of Common Pleas denied the Post Sentence Motion as being untimely filed. ECF No. 64 at 3- 6.
The Court is not convinced.
There are at least two problems with Petitioner's argument. Firstly, as noted Petitioner had
conceded that his Petition was untimely and argued merely for the equitable tolling of the statute
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of limitations based upon principles of equity and for statutory tolling based upon the time during
the pendency of Petitioner's first PCRA petition, which was filed on June 27, 2012. Now, for the
first time in these proceedings, in his Objections to the Report, Petitioner argues that his Post
Sentence Motion was a PCRA petition which entitled him to statutory tolling. This argument is
unavailing as having been raised for the first time in Objections. See, Llk, De Cuir v. County of
Los Angeles, 223 Fed. Appx. 639, 641 (9 1h Cir. 2007)("The district court did not abuse its
discretion in declining to consider evidence De Cuir presented for the first time in his objections to
the magistrate judge's report recommending summary judgment for defendants."). Indeed, "[f]or
the district judge to review new evidence or arguments [raised in objections]'would reduce the
magistrate's work to something akin to a meaningless dress rehearsal."' In re Consolidated RNC
Cases, 05 Civ. 1564, etc., 2009 WL 130178, at *10 (S.D.N.Y., Jan. 8, 2009)(quoting, Wong v.
Healthfirst, Inc., No. 04 Civ. 10061(DAB), 2006 WL 2457944, at *1 (S.D.N.Y. Aug. 23,
2006)(some internal quotation marks omitted)). Because Petitioner failed to raise the argument
that he was entitled to statutory tolling given that his Post Sentence Motion was really a PCRA
petition, the Court will not consider this argument now for the first time raised in Objections.
Secondly, even if this Court were to consider the argument raised for the first time in
Objections, the Court is not convinced. Petitioner contends that under state law, the Court of
Common Pleas was required to treat his untimely filed Post Sentence Motion as a properly filed
PCRA petition, which the Court of Common Pleas failed to do. There is state law authority
supporting Petitioner's contention that a Court of Common Pleas may or ought to treat such
untimely filed post sentence motions as PCRA Petitions apparently so long as such post sentence
motions seeks relief appropriate under the PCRA regime. The rule is not universal that such
untimely filed Post Sentence Motions must be so treated especially where the post sentence motion

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seeks only to attack discretionary aspects of the convict' s sentence something which is not
apparently cognizable under the PCRA regime. Commonwealth v. Wrecks, 934 A.2d 1287, 1289
(Pa. Super. 2007) ("because Appellant's pro se filing does not request relief contemplated by the
PCRA, the trial court was correct to treat Appellant's filing as a post-sentence motion and not a
PCRA petition. See Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa.Super.2001) (holding that
a filing which requests relief outside the PCRA will not be treated as a collateral petition)."). But
see Commonwealth v. Taylor, 65 A.3d 462, 465-468 (Pa. Super. 2013) (criticizing Wrecks).
Instantly, Petitioner's Post Sentence Motion, which he claims should have been treated as a
PCRA Petition by the state courts, did exactly what the post sentence motion in Wrecks did,
namely, attack the discretionary aspects of his sentence. While Petitioner mentioned a whole
litany of his dissatisfactions with what transpired during the course of the criminal proceedings, in
the Post Sentence Motion, Petitioner requested as relief that the "Court in its discretion should
reconsider the sentence and substantially reduce the term of imprisonment which was imposed.").
Petitioner's Post Sentence Motion at iJ 9 (attached hereto as an appendix). Accordingly, the Post
Sentence Motion, even under state law, should not have been considered a PCRA Petition
pursuant to Wrecks.
Petitioner has utterly failed to show that the state courts' treatment of his Post Sentence
Motion was erroneous as a matter of state law. But even ifhe had, we note that Petitioner did not
argue in the state courts that his Post Sentence Motion should be treated as a PCRA Petition. Pa.
Superior Court slip op., ECF No. 19-29 at 3 ("On February 9, 2012, Appellant filed an untimely
motion to modify sentence, which the trial court dismissed on February 21, 2012. Appellant did
not appeal this determination or otherwise argue that the trial court should have treated this filing
as a PCRA petition"). Having failed to argue in the state courts that his Post Sentence Motion was

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a PCRA Petition, it would not be proper for this court in the first instance to re-characterize what
the state courts determined under state law to be an untimely filed post sentence motion. See, ~,
Hartmann v. Carroll, 492 F.3d 478, 482 n.8 (3d Cir. 2007) ("The Delaware courts interpreted
Hartmann's Rule 35(b) motion as a pure plea for leniency, and so shall we."), abrogated on other

grounds by Wall v. Kholi, 562 U.S. 545 (2011). Accordingly, because the Post Sentence Motion
was treated by the state courts as an untimely filed Post Sentence Motion and not as a PCRA
Petition, we decline Petitioner's invitation to now belatedly re-characterize his Post Sentence
Motion as a PCRA petition. Because the Post Sentence Motion was both untimely filed and not
deemed to be a PCRA petition by the state courts, the Post Sentence Motion cannot be considered
a "properly filed application for State post- conviction or other collateral review" within the
meaning of28 U.S.C. § 2244(d)(2) and this is so, even if a timely filed post sentence motion can
be considered a "properly filed application for State post-conviction or other collateral review."
Even if we were to answer this question in the first instance, we would hold that
Petitioner's Post Sentence Motion was not a "properly filed application" because, treated as a Post
Sentence Motion, it was untimely filed. Nor could the Post Sentence Motion be properly
considered a PCRA Petition because it was not in the form of a PCRA Petition but in the form of a
Post Sentence Motion within the contemplation of Artuz v. Bennet, 531 U.S. 4, 8 (2000) ("And an
application is 'properly filed' when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings. These usually prescribe, for example, the form of the
document, the time limits upon its delivery, the court and office in which it must be lodged, and
the requisite filing fee.")(footnote omitted).

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Accordingly, for the foregoing reasons, we reject Petitioner's contention that his untimely
filed Post Sentence Motion qualifies for statutory tolling. Moreover, because the Petitioner's Post
Sentence Motion cannot be deemed a properly filed PCRA petition, his argument that the PCRA
Petition that he filed on June 27, 2012, was merely an extension of what he calls his "first PCRA
Petition" (which, in fact, was Petitioner's Post Sentence Motion) is likewise unavailing. ECF No.
63, ~~ 37 - 61 (arguing for equitable tolling). See Dyer v. Lavan, No. CIV.A. 1:03-CV-0128,
2005 WL 1309032, at *2 (M.D. Pa. May 31, 2005) ("A properly filed petition is 'one submitted
according to the state's procedural requirements, such as the rules governing the time and place of
filing.' Lovasz v. Vaughn, 134 F .3d 146, 148 (3d Cir.1998). If a petitioner files an untimely
application and the state court dismisses the application as time-barred, then it is not a properly
filed application for tolling purposes. Meritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003).").

B. The Post Sentence Motion did not equitably toll the AEDP A limitations period.
Similarly, Petitioner argues that he is entitled to equitable tolling based on his filing of the
untimely Post Sentence Motion and during its pendency. ECF No. 63,

~~

62 - 88. Again, we are

not persuaded. As the Report correctly noted equitable tolling is appropriate only when the
existence of extraordinary circumstances prevented Petitioner from filing timely and that the
Petitioner acted with due diligence. ECF No. 60 at 11. Because the Post Sentence Motion was
denied by the Court of Common Pleas on February 21, 2012, and Petitioner had more than enough
time to file his habeas petition in this Court thereafter, i.e., at least until about July 21, 2014,
Petitioner fails to carry his burden to show entitlement to equitable tolling. Davis v. Lavan, No.
CIV.A. 03-6129, 2004 WL 828367, at *4 (E.D. Pa. Mar. 12, 2004), report and recommendation

adopted, No. CIV.A. 03-6129, 2004 WL 1109758 (E.D. Pa. Apr. 30, 2004) ("Here, the late
notification did not actually prevent Petitioner from filing his habeas petition because, at the time

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defense counsel learned of the Pennsylvania Superior Court's unfavorable decision, there were still
approximately 218 days remaining for Petitioner to file a timely habeas petition. Because this
constituted more than enough time to file the petition, equitable tolling is not appropriate."); Mack
v. Vaughan, No. CIV.A. 03-5691, 2004 WL 257387, at *4 (E.D. Pa. Jan. 30, 2004), report and
recommendation adopted sub nom. Mack v. Vaughn, No. CIV.A. 03-5691, 2004 WL 350183

(E.D. Pa. Feb. 23, 2004) ("Here, the late notification did not actually prevent Petitioner from filing
his habeas petition because, at the time defense counsel learned of the Pennsylvania Supreme
Court's unfavorable decision, there were still approximately 75 days remaining for Petitioner to
file a timely habeas petition. Because this constituted more than enough time to file the petition,
equitable tolling is not appropriate."); Reynolds v. McLaughliQ, No. 7:12-CV-140, 2013 WL
3756473, at *2 (M.D. Ga. July 15, 2013) ("equitable tolling is not appropriate here because there is
no causal connection between Petitioner's counsel's purported failure to notify Petitioner about the
appellate decision and the late filing of the petition. Petitioner was aware of the denial of his
appeal before the end of the one-year limitation period. There were no legal impediments
preventing Petitioner from filing a timely petition.").

C. Errors on the part of counsel did not entitle Petitioner to equitable tolling.
Petitioner also argues that errors of Attorney Valsamidis in state court entitle him to
equitable tolling. The Report adequately explained :-vhy the alleged errors on the part of Attorney
Valsamidis did not entitle Petitioner to equitable tolling especially given that Attorney Valsamidis
ceased to represent Petitioner as of the date he withdrew his appearance on January 6, 2012, more
than two years before the AEDP A statute of limitations had run out. ECF No. 60 at 14 - 17.
Petitioner also argues that Attorney Goodwald's failure to appeal from the order denying
his Post Sentence Motion and/or the failure of the state court to inform his of his right to appeal

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.•

within 30 days after the order denying his Post Sentence Motion, constitute extraordinary
circumstances so as to justify equitable tolling. ECF No. 63 ~~ 89 - 100. However, even if
Petitioner could establish that these were extraordinary circumstances, these circumstances ended,
according to Petitioner's own argument, no later than date of the filing of his Amended PCRA
Petition on August 11, 2012. Id. ~ 92. This left nearly two years until July 2014 when the AEDP A
statute of limitations would run out. Such alleged errors or failings with so much time remaining
of the AEDPA limitations period simply did not prevent Petitioner from timely filing. Davis v.
Lavan; Mack v. Vaughan; Reynolds v. McLaughlin Even during the pendency of the PCRA
petition, nothing prevented Petitioner from filing a protective petition in this Court, seeking a stay
and abeyance of the habeas petition in this Court, while Petitioner exhausted his state court
remedies.
D. Petitioner has not established his actual innocence.
Lastly, Petitioner contends that he is entitled to be excused from complying with the
AEDPA statute oflimitations because he is actually innocent. ECF No. 63,

~~

118- 142. The

Report concluded that Petitioner had not carried his heavy burden to show his actual innocence
and pointed to, inter alia, the fact that Petitioner pleaded guilty and that he twice admitted to the
shooting to a defense psychiatrist and a prosecution psychiatrist. Petitioner contends that the no
jury would have heard of these facts and therefore, they cannot enter into the calculus of assessing
his actual innocence claim. See id., ~134 - 136. Petitioner is simply wrong on the law. An
assessment of the effect of an actual innocence claim on a reasonable hypothetical jury takes into
account all evidence, which would include the fact that Petitioner pleaded guilty and that he
confessed to two psychiatrists that he actually shot the victim.

Because of the focus being on

establishing actual innocence as opposed to legal innocence, the court is not bound to consider

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only the evidence that would have been properly introduced at a habeas petitioner's criminal trial.
See Schlup v. Delo, 513 U.S. at 327 - 28, wherein the court held that "[i]n assessing the adequacy
of petitioner's showing [of actual innocence], therefore, the district court is not bound by the rules
of admissibility that would govern at trial. Instead, the emphasis on 'actual innocence' allows the
reviewing [habeas] tribunal also to consider the probative force of relevant evidence that was
either excluded or unavailable at trial." Indeed, the Supreme explained more fully what it meant
by allowing a court to consider evidence not heard at trial when it declared that "[t]he habeas court
must make its determination concerning the petitioner's innocence 'in light of all the evidence,
including that alleged to have been illegally admitted (but with due regard to any unreliability of it)
and evidence tenably claimed to have been wrongly excluded or to have become available only
after the trial."' Id. at 328.

AND NOW, this

--t_
/1

day of April 2017, after de novo review of the record

in this case including the Report and Petitioner's Objections;
IT IS HEREBY ORDERED that the Amended Petition for Writ of Habeas
Corpus, is DISMISSED. A Certificate of Appealability is denied.
IT IS FURTHER ORDERED that the Report and Recommendation, ECF
No. 60, of Chief Magistrate Judge Kelly, dated January 24, 2017, is adopted as the opinion of the
Court.
The Clerk is to mark the case closed.

David Stewart Cercone
UNITED ST ATES DISTRICT JUDGE

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.cc:

The Honorable Maureen P. Kelly
Chief United States Magistrate Judge

All counsel of record via CM-ECF
TEREL DARNELL DIXON
KD7082
SCI Somerset
1600 Walters Mill Rd.
Somerset, PA 15510

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