WESTERFIELD v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 39

MEMORANDUM AND SHOW CAUSE ORDER re 3 Petition for Writ of Habeas Corpus filed by RONNY WESTERFIELD. On or before July 20, 2018, Petitioner may file a response to this Court's Memorandum and show cause why his claims should not be dismissed for failure to file them within the one-year limitations period. On or before that same date, Respondents may submit a response setting forth their position. Signed by Magistrate Judge Lisa Pupo Lenihan on June 21, 2018. (kcc)

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

RONNY WESTERFIELD,
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA and THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 15 – 634
Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM AND SHOW CAUSE ORDER
Before the Court is a Petition for Writ of Habeas Corpus filed by Ronny Westerfield
(“Petitioner”) pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). He is challenging the judgment of sentence imposed
upon him by the Court of Common Pleas of Fayette County on November 4, 2008.
It appears to the Court that all of Petitioner’s claims are subject to dismissal under
AEDPA’s one-year statute of limitations, which is codified at 28 U.S.C. § 2244(d). Respondents
did not raise this issue in their Answer. Nevertheless, the Court may raise the issue sua sponte as
long as Petitioner is given fair notice and an opportunity to respond and is not prejudiced. Day v.
McDonough, 547 U.S. 198, 205-10 (2006); United States v. Bendolph, 409 F.3d 155, 161-70 (3d
Cir. 2005) (en banc). See also Wood v. Milyard, — U.S. — , 132 S.Ct. 1826, 1834 (2012). This
Memorandum gives him the required notice. Pursuant to the attached Order, both parties are
provided with the opportunity to set forth their positions regarding the statute of limitations.
1

Petitioner in particular must show cause why his claims should not be dismissed for failure to
meet the statutory deadline.
A. Procedural Background
Ronny Westerfield has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254 (“Petition”) challenging his judgment of sentence entered by the Court of Common Pleas of
Fayette County on November 4, 2008, after he was found guilty of criminal attempted rape of a
child, involuntary deviate sexual intercourse of a child, and corruption of minors, and sentenced
to inter alia 16 to 32 years of incarceration. 1 (Rep’t Ex. 2, ECF No. 26-2); see also
Commonwealth v. Westerfield, CP-26-CR-0001990-2007 (Fayette County Com. Pl.). 2
Following the imposition of sentence, Petitioner filed a direct appeal challenging only the
sufficiency of evidence to support his conviction. (Resp’t Ex. 3, ECF No. 26-3.) On December
23, 2008, the Court of Common Pleas of Fayette County (“trial court”) issued an Opinion in
Support of Verdicts. (Resp’t Ex. 4, ECF No. 26-4.) In an unpublished Memorandum filed on
June 17, 2009, the Superior Court of Pennsylvania affirmed Petitioner’s judgment of sentence.
(Resp’t Ex. 5, ECF No. 26-5); see also Commonwealth v. Westerfield, 981 A.2d 325 (Pa. Super.
Ct. 2009) (Table). The Supreme Court of Pennsylvania denied Petitioner’s Petition for
Allowance of Appeal (“PAA”) on February 24, 2010. (Resp’t Exs. 5(a) and 5(b), ECF Nos. 266, 26-7); see also Commonwealth v. Westerfield, 989 A.2d 917 (Pa. 2010) (Table).

Petitioner was also charged with rape of a child, but upon a motion for judgment of acquittal,
that charge was dismissed on May 8, 2008. (Resp’t Ex. 1, ECF No. 26-1.)
1

The docket sheet for Petitioner’s criminal case is a matter of public record and available for
public view at https://ujsportal.pacourts.us/
2

2

Petitioner filed a timely petition pursuant to Pennsylvania’s Post Conviction Relief Act
(“PCRA”), 42 Pa. C.S.A. § 9541, et seq., on or around September 15, 2010, raising only a single
ground of ineffective assistance of counsel. (Resp’t Ex. 6, ECF No. 26-8.) The trial court
appointed counsel to represent Petitioner, but counsel moved to and was subsequently granted
permission to withdraw after filing a no-merit letter in accordance with Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. Ct. 1988). The trial court then issued an Order dated April 25,
2011, advising Petitioner of its intent to dismiss his PCRA petition on the basis that he failed to
allege how his trial counsel was ineffective and giving Petitioner twenty (20) days in which to
respond to the proposed dismissal in accordance with Pa. R. Crim. P. 907(1). (Resp’t Ex. 7, ECF
No. 26-9.) Petitioner did not respond to the trial court’s Order and the trial court dismissed his
PCRA petition without a hearing on May 17, 2011. (Resp’t Ex. 8, ECF No. 26-10.) Petitioner
then filed an appeal to the Superior Court, alleging that the trial court should not have dismissed
his PCRA petition without a hearing and that it erred in finding that trial counsel was not
ineffective. (Resp’t Exs. 9, 10(a), ECF No. 26-11, 26-13.) In an unpublished Memorandum
filed March 9, 2012, the Superior Court affirmed the dismissal of Petitioner’s PCRA petition.
(Resp’t Ex. 10, ECF No. 26-12); see also Commonwealth v. Westerfield, 47 A.3d 1240 (Pa.
Super. Ct. 2012) (Table).
Petitioner filed a second PCRA petition on November 7, 2012, wherein he alleged a
violation of due process, fraud by the public defender resulting in a miscarriage of justice, and a
lack of subject matter jurisdiction by the trial court. (Resp’t Exs. 11, 11(a), ECF Nos. 14, 15.)
The trial court issued an Order dated November 27, 2012, advising Petitioner of its intent to
dismiss the second PCRA petition as untimely and providing him with twenty (20) days to
respond to the proposed dismissal in accordance with Pa. R. Crim. P. 907(1). (Resp’t Ex. 12,
3

ECF No. 26-16.) This time Petitioner responded to the trial court’s Order, (Resp’t Ex. 13, ECF
No. 26-17), but the trial court still dismissed it without a hearing on December 13, 2012, (Resp’t
Ex. 14, ECF No. 26-18). Petitioner appealed the dismissal of his second PCRA petition,
challenging the trial court’s conclusion that it was untimely, as well as the substance of the
petition. (Resp’t Ex. 15, ECF No. 26-19.) In an unpublished Memorandum filed on March 3,
2015, the Superior Court concluded that Petitioner had waived any issue on appeal for having not
timely filed a concise statement of issues on appeal in accordance with Pa. R.A.P. 1925, and,
even if he had not, that the second PCRA petition was untimely, therefore affirming the
dismissal of the second PCRA petition. (Res’t Ex. 16, ECF No. 26-20.)
In August 2014, Petitioner filed a “Motion to Correct Illegal Sentence” in which he
alleged that the charge of involuntary deviate sexual intercourse with a child was withdrawn at
his preliminary hearing and not properly re-filed. (Resp’t Ex. 17, ECF No. 26-23.) In an
Opinion and Order dated February 20, 2015, the trial court denied the Motion to Correct Illegal
Sentence on the merits. (Resp’t Ex. 18, ECF No. 26-24.) Petitioner appealed the denial of relief,
and, in an unpublished Memorandum filed September 18, 2015, the Superior Court firstly
determined that Petitioner’s Motion to Correct Illegal Sentence was really a third PCRA petition
and secondly denied the petition as untimely. (Resp’t Ex. 19, ECF No. 26-25.)
Pursuant to the prisoner mailbox rule, Petitioner instituted the instant habeas corpus
proceedings on May 8, 2015. 3 Respondents filed their Answer to the Petition for Writ of Habeas
Even though Petitioner signed and dated his Motion for Leave to Proceed in form pauperis
April 25, 2015 (ECF No. 1), and signed and dated his Petition for Writ of Habeas Corpus May 1,
2015 (ECF No. 1-1), his monthly account statement reflects transactions up to May 8, 2015 (ECF
No. 1). Therefore, the absolute earliest Petitioner could have placed his Petition in the mail was
May 8, 2015. Pursuant to the prisoner mailbox rule, this will be considered the filing date of the
Petition. See Houston v. Lack, 108 S. Ct. 2379 (1988) (deeming a pro se prisoner’s notice of

3

4

Corpus on February 26, 2016 (ECF No. 26), and Petitioner filed a Response to the Answer on
June 15, 2016 (ECF No. 36). Petitioner raises four claims in his Petition. In his first claim,
Petitioner alleges ineffective assistance of counsel for failing to exercise due diligence in
gathering information and calling witnesses he claims would have supported his defense. He
also claims that counsel “conspired with the Commonwealth” to conceal the supposed fact that
Petitioner lacked knowledge that the withdrawn charge of involuntary deviate sexual intercourse
with a child, 18 Pa. C.S.A. § 3123(b), was re-refiled. Petitioner’s remaining three claims arise
from the same circumstances – the re-filing of the charge of involuntary deviate sexual
intercourse with a child, 18 Pa. C.S.A. § 3123(b). He claims that the re-filing of the charge
without his knowledge, and after it had been withdrawn at his preliminary hearing, constituted a
violation of his due process rights, was a miscarriage of justice, and rendered his sentence for the
charge illegal. (ECF No. 3.)
B. Discussion
AEDPA imposes a one-year limitations period for state prisoners seeking federal habeas
review. It is codified at 28 U.S.C. § 2244(d) and it provides:
(1)

A 1-year period of limitation shall apply to an 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;

appeal filed “at the time petitioner delivered it to the prison authorities for forwarding to the
court”). See also Burns v. Morton, 134 F.3d 109, 112-13 (3d Cir. 1998).
5

(C)

(D)

(2)

the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.

The time during which a properly filed application for State postconviction 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 section.

28 U.S.C. § 2244(d).
The statute of limitations set out in § 2244(d)(1) must be applied on a claim-by-claim
basis. Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), cert denied, 543 U.S. 1067 (2005). In
analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year
limitations period, a federal court must undertake a three-part inquiry. First, the court must
determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1).
Second, the court must determine whether any “properly filed” applications for post-conviction
or collateral relief were pending during the limitations period that would toll the statute pursuant
to section 2244(d)(2). Third, the court must determine whether any of the other statutory
exceptions or equitable tolling should be applied on the facts presented.
As to the first inquiry, the vast majority of habeas cases fall within § 2244(d)(1)(A), with
AEDPA’s limitation period commencing for all claims on the date the state prisoner’s judgment
of sentence became final by the conclusion of direct review. Such is the case here with respect
to all of Petitioner’s claims.

6

In this case, Petitioner did not seek review with the United States Supreme Court after the
Supreme Court of Pennsylvania denied his PAA on February 24, 2010. Therefore, his judgment
of sentence became final on May 26, 2010. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.
2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration
of time for seeking such review, including the time limit (90 days) for filing a writ of certiorari in
the Supreme Court). Absent any tolling of the statute of limitations, Petitioner had one year from
that date, or until May 26, 2011, to file his Petition for Writ of Habeas Corpus.
As to the second inquiry, the one-year limitations period was tolled during the pendency
of Petitioner’s “properly filed” state post-conviction proceedings pursuant to section 2244(d)(2).
Petitioner sought collateral relief through a properly filed PCRA petition on September 15, 2010.
At that time, 111 days of his one-year statute of limitations period had expired (May 27, 2010 to
September 15, 2010). The statute of limitations was then tolled until March 9, 2012 when the
Superior Court affirmed the dismissal of PCRA relief.
While Petitioner did file a second PCRA petition on November 7, 2012, it was ultimately
dismissed by the trial court as untimely, and the dismissal of the petition as untimely was
affirmed by the Superior Court on March 3, 2015. The United States Supreme Court has held
that time limits are “filing” conditions and that when a state court rejects a post-conviction
petition as untimely it is not “properly filed” and does not statutorily toll the one-year AEDPA
time limitation. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“When a postconviction
petition is untimely under state law, that is the ‘end of the matter’ for purposes of §
2244(d)(2).”); see also Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, Horn v. Fahy,
534 U.S. 944 (2001) (holding that a PCRA petition dismissed by the state court as time-barred
was not “properly filed” and therefore does not toll the statute of limitations for a federal habeas
7

corpus petition). Moreover, a PCRA petition dismissed as untimely is still not “properly filed”
even if the applicant asserted a statutory exception to the Pennsylvania statute of limitations.
Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir. 2003); see also Pridgen v. Shannon, 380 F.3d 721,
728-29 (3d Cir. 2004).
Because Petitioner’s second PCRA petition did not qualify as “properly filed” (nor did
his subsequently filed Motion to Correct Illegal Sentence), and did not toll any portion of his
one-year statute of limitations, the remaining portion of Petitioner’s statute of limitations (254
days) started to run again on March 10, 2012, the day after the Superior Court affirmed the
dismissal of his first PCRA petition, and it ran until it expired on November 19, 2012. Petitioner
did not initiate these proceedings until May 8, 2015, well past the expiration of the statute of
limitations.
Based upon all the foregoing, it appears to the Court that all of Petitioner’s claims are
untimely. Unless he can demonstrate in his response to the Court’s show cause order that
AEDPA’s limitations period commenced for any of his claims on a date set forth in §
2244(d)(1)(B)-(D) and/or that equitable tolling 4 applies during the relevant time period, this
Court will dismiss the Petition as untimely. An appropriate Order follows.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge
The U.S. Supreme Court has held that AEDPA's statute-of-limitation 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 2562. See also United States v. Thomas, 713 F.3d 165, 174-75 (3d Cir. 2013); Ross v.
Varano, 712 F.3d 784, 798-804 (3d Cir. Apr. 5, 2013); Munchinski v. Wilson, 694 F.3d 308,
329-32 (3d Cir. 2012).
4

8

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

RONNY WESTERFIELD,
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA and THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 15 – 634
Magistrate Judge Lisa Pupo Lenihan

ORDER
AND NOW, this 21 day of June, 2018;
IT IS HEREBY ORDERED that, on or before July 20, 2018, Petitioner may file a
response to this Court’s Memorandum and show cause why his claims should not be dismissed
for failure to file them within the one-year limitations period. On or before that same date,
Respondents may submit a response setting forth their position.

/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge
Cc:

Ronny Westerfield
HU-7648
10745 Route 18
Albion, PA 16475
Counsel for Respondents
(Via CM/ECF electronic mail)

9