JOHNSON v. TRITT et al
MEMORANDUM OPINION granting 27 Motion to Dismiss. The Petition for Writ of Habeas Corpus will be dismissed as untimely and a certificate of appealability will be denied. Signed by Magistrate Judge Cynthia Reed Eddy on 2/28/2017. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRENDA TRITT, et al.,
Civil Action No. 15-cv-823
United States Magistrate Judge
Cynthia Reed Eddy
Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner
Ricky Johnson (“Petitioner”), in which he is challenging the judgment of sentence imposed on
him by the Court of Common Pleas of Allegheny County, Pennsylvania, on February 28, 2007.
Respondents Brenda Tritt, the Attorney General of the State of Pennsylvania, and the District
Attorney of Allegheny County (“Respondents”) have filed a motion to dismiss the petition as
untimely (ECF No. 27).
For the reasons set forth below, Respondents’ motion will be granted, the petition for writ
of habeas corpus will be dismissed as untimely, and a certificate of appealability will be denied.
Facts and Procedural History
Following a jury trial in the Court of Common Pleas of Allegheny County, Petitioner was
found guilty of criminal attempt, aggravated assault, and recklessly endangering another person.
The trial court sentenced Petitioner to 17 ½ to 35 years’ imprisonment on February 28, 2007.
Petitioner’s conviction and sentence was affirmed on direct appeal by the Superior Court of
Pennsylvania on February 2, 2009. He did not file a petition for allowance of appeal with the
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a
final judgment. jurisdiction by a United States Magistrate Judge. See ECF Nos. 19 and 26.
Supreme Court of Pennsylvania. Petitioner alleges that his appellate counsel Arthur “Bloom
never advised [him] of [the Superior Court’s] decision, and that is why he “never sought further
review in the Supreme Court of Pennsylvania” of the Superior Court’s decision. (ECF No. 33 at
1). The record reflects that Attorney Bloom was disbarred by order dated March 23, 2009,
following lengthy disciplinary proceedings involving an unrelated matter.2 (ECF No. 27-2 at 28).
Petitioner has submitted a letter he sent to Attorney Bloom on October 23, 2008,
inquiring into the status of his direct appeal, and Attorney Bloom’s response thereto, in which he
wrote that “Oral Argument [regarding Petitioner’s direct appeal] has been scheduled for
December 3, 2008 . . . . I will contact you following the Oral Argument to give an indication
with respect to how the judges received our argument.” (ECF No. 34-1 at 3). Petitioner has also
submitted a letter he sent to Attorney Bloom on March 28, 2010, which was returned as “not
deliverable as addressed.” (ECF No. 34-1 at 4-5). In the letter, Petitioner wrote:
I am writing you to inform you that I have written the Superior Court
Prothonotary requesting a copy of my appeal docket sheet showing the disposition
of my appeal. When I received the docket it showed the last entry’s [sic], as
February 02, 2009 Affirmed, Per Curiam and March 10, 2009 Remitted, Western
District Filing Office. I received your letter after oral arguments and you stated
that Superior Court panel agreed with the lower court and that we would be
moving forward with the appeal and raising all claims of trial counsels [sic]
ineffectiveness. I have made several attempts at contacting you by phone, with no
Attorney Bloom, I know you are aware that the time to file an appeal is running
out? Would you please write back or accept my phone call ASAP!!! I understand
that there is a lot of time and distance between us but that shouldn’t be reason for
a lack of communication.
(Id. at 4). Petitioner apparently attempted to resend the letter on April 18, 2010, but it was again
Petitioner does not indicate in his filings when he learned of Attorney Bloom’s
disbarment. In the state court proceedings, however, he stated that he did not become aware until
May 8, 2013. (ECF No. 27-2 at 11).
returned as undeliverable. (Id. at 3). The state court docket confirms that Petitioner was sent a
copy of his docket sheet on February 17, 2010, in response to correspondence from him. (ECF
27-1 at 10).
On June 17, 2010, Petitioner filed his first pro se Post-Conviction Relief Act (“PCRA”)
petition in state court, which was dismissed as untimely on September 12, 2011. The Superior
Court affirmed the dismissal of Petitioner’s first PCRA petition on May 22, 2012, after having
found that the petition was not timely. On July 8, 2013, Petitioner filed a second PCRA petition,
which was dismissed on December 4, 2013. The Superior Court affirmed the dismissal, finding
once again that the petition was untimely and that Petitioner had not satisfied any of the
exceptions to the timeliness requirement. Petitioner filed a third PCRA petition on May 1, 2015.
Before the PCRA court issued a decision regarding the third PCRA petition, Petitioner
filed the instant petition for writ of habeas corpus on September 1, 2015. In the petition,
Petitioner acknowledged that his conviction had become final more than one year before he
initiated these proceedings. However, he contended that his petition was not time-barred
[he] was abandoned by Appellate Counsel, Arthur Bloom who committed fraud
by continually advising [him] that his appeal was pending and that he was
diligently seeking relief for the Petitioner. In reality, Attorney Bloom had been
disbarred during the pendency of the appeal and was willfully advising the
Petitioner that his appeal was pending when it had already been dismissed. This
action caused a late filing.
(ECF No. 3 at 14).3 The next day, upon motion by Petitioner, the Court stayed the case and held
it in abeyance so Petitioner could exhaust his state law remedies. The case was reopened on
Petitioner’s contention that Attorney Bloom was “disbarred during the pendency of the
appeal” is factually inaccurate. (ECF No. 3 at 14). As already noted, the record reflects that
Attorney Bloom was actually disbarred on March 23, 2009, which was more than one month
after Petitioner’s direct appeal was decided. (ECF No. 27-2 at 28).
August 9, 2016 – approximately one month after the Superior Court issued an opinion affirming
the PCRA court’s dismissal of the third petition as untimely.
On October 25, 2016, Respondents filed a motion to dismiss, in which they argue that the
petition should be dismissed as untimely. Petitioner filed a “reply” on January 25, 2017, arguing
that Respondents’ motion to dismiss is procedurally improper and, in any event, that he is
entitled to statutory and equitable tolling or to an alternative start date pursuant to 28 U.S.C. §
2244(d)(1)(B) because of “attorney abandonment” and
other impediments created by state action that prevented petitioner from timely
filing his Federal Habeas Petition such as: (A) the state Court’s refused [sic] to
apply the exceptions of 42 Pa.C.S. §§ 9545(b)(1)(ii), (b)(2), to any of the PCRA
petitioner. (B) The law in Pennsylvania is in conflict and in a state of flux
regarding issues of public record, the requirements of the Pro-se, unrepresented
incarcerated petitioner for filing untimely PCRA petitions under the exceptions of
the PCRA Statute. (C) The rule of untimeliness/time-bar of filing PCRA petitions
is not clearly established and consistently followed. (D) The state Court’s
application of the time-bar rule was/is an exorbitant application of the rule in
petitioner’s case. (E) There was government interference that also interfered with
petitioner timely filing his Federal Habeas Petition which consisted of, petitioner
being transferred out-of-State to Virginia, without access to Pennsylvania law,
Legal materials/personal property, the state Court’s and prior Attorney’s [sic]
refused to answer petitioner’s phone calls from the prison, thus, which were all
impediments that constituted extraordinary circumstances that stood in petitioners
[sic] way and prevented the timely filing of his Federal Habeas petition.
(ECF No. 33 at 4-5).
Motion to Dismiss as a Response to a Petition for a Writ of Habeas Corpus
Initially, Petitioner asserts that a motion to dismiss is a procedurally improper response to
a habeas corpus petition. This argument is incorrect. The Rules Governing Section 2254 Cases in
the United States District Courts (“the 2254 Rules”) were amended in 2004 to expressly permit
district courts to follow the “common practice” of filing a pre-answer motion to dismiss a habeas
corpus petition. Rule 4 of the 2254 Rules states the following:
If the petition is not dismissed, the judge must order the respondent to file an
answer, motion, or other response within a fixed time, or to take other action the
judge may order. In every case, the clerk must serve a copy of the petition and any
order on the respondent and on the attorney general or other appropriate officer of
the state involved.
(emphasis added). The 2004 Advisory Committee Notes to Rule 4 state:
The amended rule reflects that the response to a habeas petition may be a
Changes Made After Publication and Comments. The Rule was
modified slightly to reflect the view of some commentators that it is common
practice in some districts for the government to file a pre-answer motion to
dismiss. The Committee agreed with that recommendation and changed the word
"pleading" in the rule to "response." It also made several minor changes to the
Furthermore, Rule 2254(E)(1)(a) of the Local Rules for the United States District Court for the
Western District of Pennsylvania explicitly permits a respondent to “file a motion to dismiss if
the respondent believes that there is a clear procedural bar to the action, such as . . . [the] statute
of limitations.” Thus, a pre-answer motion to dismiss is an appropriate response to a habeas
corpus petition under both Rule 4 of the 2254 Rules and Local Rule 2254(E)(1)(a). Having found
that Respondents’ motion to dismiss is the proper vehicle by which to attack the timeliness of the
petition, the Court will proceed to address the parties’ remaining arguments.
AEDPA imposes a one-year limitations period for a state prisoner to file a federal habeas
petition. Generally, the limitations period begins to run on the date the judgment of sentence
becomes final. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final at the conclusion of direct
review or upon the expiration of time for seeking such review. Id.; see Gonzales v. Thaler, --U.S. ----, 132 S. Ct. 641, 653-54 (2012). One of the following alternative start dates, however,
(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;
(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.
28 U.S.C. § 2244(d)(1)(B)-(D). Furthermore, the AEDPA limitations period is subject to both
statutory and equitable tolling. Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999).
Petitioner’s judgment became final on March 4, 2009, which was the last date on which
he could have sought review from the Pennsylvania Supreme Court. See Pa. R.A.P. 1113(a)
(providing that petition for allowance of appeal must be filed within 30 days of the Superior
Court’s order); Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000) (“[T]he period of limitation
tolls during the time a prisoner has to seek review of the Pennsylvania Superior Court’s
decision[,] whether or not review is actually sought.”). He needed to file his federal habeas
petition within one year of that date, or March 4, 2010. Since Petitioner did not file the instant
petition until more than five years beyond that date, the petition is facially untimely and must be
dismissed unless Petitioner can show that the limitations period should be tolled, either
statutorily or equitably, or that an alternate start date should apply.
Section 2244(d)(2) 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). However, “a state postconviction petition rejected by the state court as untimely is
not ‘properly filed’ within the meaning of § 2244(d)(2).” Allen v. Siebert, 552 U.S. 3, 5 (2007)
(citing Pace v. DiGuglielmo, 544 U.S. 408 (2005)). Because the state courts rejected Petitioner’s
PCRA petitions as untimely, he is not entitled to statutory tolling under § 2244(d)(2). This is true
notwithstanding Petitioner’s arguments that the state courts erred when they found his three
PCRA petitions untimely, for this Court “must defer” to the holdings of the state courts on that
issue. See Merritt v. Blaine, 326 F.3d 157, 165–66 (3d Cir. 2003).
Although AEDPA’s statute of limitations is subject to equitable tolling, the Third Circuit
Court of Appeals has held that “courts should be sparing in their use of the doctrine” and limit its
application only to the “rare situation where [it] is demanded by sound legal principles as well as
the interests of justice.” LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005) (internal citations
omitted). Equitable tolling is thus only appropriate when “‘the principles of equity would make
the rigid application of a limitation period unfair,’ such as when a state prisoner faces
extraordinary circumstances that prevent him from filing a timely habeas petition and the
prisoner has exercised reasonable diligence in attempting to investigate and bring his claims.” Id.
at 276 (quoting Miller v. New Jersey State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)).
“Due diligence does not require ‘the maximum feasible diligence;’” but “it does require
reasonable diligence in the circumstances.” Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004)
(internal citations omitted). “This obligation does not pertain solely to the filing of the federal
habeas petition, rather it is an obligation that exists during the period appellant is exhausting state
court remedies as well.” LaCava, 398 F.3d at 277. “The fact that a petitioner is proceeding pro se
does not insulate him from the ‘reasonable diligence’ inquiry and his lack of legal knowledge or
legal training does not alone justify equitable tolling.” Ross v. Varano, 712 F.3d 784, 799-800
(3d Cir. 2013) (citing Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003); Doe v. Menefee, 391
F.3d 147, 177 (2d Cir. 2004)).
Petitioner argues that he is entitled to equitable tolling because Attorney Bloom
“abandoned” him. As Petitioner elaborates in his brief, he “never sought further review in the
Supreme Court of Pennsylvania” of the Superior Court’s decision (and by extension, did not file
a timely PCRA petition) because Attorney “Bloom never advised [him] of [the Superior Court’s]
decision” regarding his appeal. (ECF No. 33 at 1).
To be sure, courts have held that “[a]n attorney’s total failure to communicate with his
client, particularly where the attorney has failed to inform his client that his case has been
decided and that decision implicates the client’s ability to bring further proceedings, can
constitute attorney abandonment, thereby supplying ‘extraordinary circumstances’ justifying
equitable tolling of the statute of limitations.” Warren v. Sauers, No. 1:12-CV-1819, 2015 WL
778208, at *8 (M.D. Pa. Feb. 24, 2015) (citing Holland v. Florida, 560 U.S. 631, 652 (2010));
Ross, 712 F.3d at 803; Gibbs v. Legrand, 767 F.3d 879, 887 (9th Cir. 2014)). but see LaCava,
398 F.3d at 277 (noting that “[i]n non-capital cases, attorney error, miscalculation, inadequate
research, or other mistakes have not been found to rise to the ‘extraordinary’ circumstances
required for equitable tolling”). However, the Court need not decide whether Petitioner has
shown extraordinary circumstances because, even assuming that he has, he has not shown that he
exercised reasonable diligence.
Petitioner’s last contact with Attorney Bloom came sometime after December 8, 2008,
when Attorney Bloom sent him the letter regarding oral argument on his direct appeal. (ECF No.
34-1 at 4). According to the letter Petitioner tried to send to Attorney Bloom in March 2010,
Petitioner “made several attempts at contacting [Attorney Bloom] by phone, with no luck,”
during the months that followed. (ECF No. 34-1 at 5). Despite Attorney Bloom’s
unresponsiveness, Petitioner waited until sometime in or around February 2010 – i.e., another 13
or 14 months – to write to the Superior Court Prothonotary to request a copy of his docket sheet,
which was sent on February 17, 2010. At that point, his judgment had already been final for
nearly one year, and as he recognized in the letter he tried to send Attorney Bloom in March
2010, he knew the time for filing an appeal was running out. (ECF No. 34-1 at 4-5). This delay
in inquiring into the status of his case evinces a lack of diligence on Petitioner’s part. See
LaCava, 398 F.3d at 277-78 (finding a lack of due diligence where petitioner, represented by
counsel, waited 21 months to inquire with the state courts as to the status of his filing).
The lack of diligence did not end there, though. Once Petitioner learned of the status of
his direct appeal via the docket sheet, he waited an additional four months, until June 17, 2010,
to file his first PCRA petition, which the state courts held was untimely. Ultimately, he waited
another five years to file his federal habeas petition, choosing instead to file two more untimely
state-court petitions over the span of two and ½ years. This, too, evinces a lack of diligence. See
Pace, 544 U.S. at 419 (finding that petitioner’s lack of diligence after alleged extraordinary
circumstance reinforced an adverse diligence determination for tolling period). Since Petitioner
did not display reasonable diligence under the circumstances in pursuing his rights, the he is not
entitled to tolling of the AEDPA’s statute of limitations.4 Cf. Keeling v. Warden, Lebanon Corr.
Inst., 673 F.3d 452, 463 (6th Cir. 2012) (explaining that courts “have declined to allow equitable
Because Petitioner has failed to show that he exercised reasonable diligence in pursuing
his rights, the Court finds no basis to hold an evidentiary hearing on this issue. See LaCava v.
Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (citing Robinson v. Johnson, 313 F.3d 128, 143 (3d Cir.
2002)) (explaining that a “hearing on availability of equitable tolling [is] not warranted where
petitioner failed to show that he exercised reasonable diligence in attempting to file a timely
tolling where a petitioner’s attorney misled him into believing that his appeal was still pending
before the state court because the petitioner failed to diligently monitor the progress of his
appeal”). The Court recognizes that Petitioner may have believed that he had to exhaust his state
law remedies before filing his federal petition, but as the Court of Appeals has made clear, this
sort of alleged “procedural conundrum” does not justify equitable tolling. Rather, the proper
course of action would have been to protectively file a habeas petition in federal court, along
with a request to “stay and abey the federal habeas proceeding until state remedies [were]
exhausted.” Darden v. Sobina, 477 F. App’x 912, 918 (3d Cir. 2012).
To the extent that Petitioner is arguing that he is entitled to equitable tolling because he
was “transferred out-of-State to Virginia, without access to Pennsylvania law, Legal
materials/personal property,” (ECF No. 33 at 4-5), he is misguided. According to the evidence
Petitioner has submitted with his petition, he was transferred to the custody of the Virginia
Department of Corrections on April 29, 2010, which was after the time for filing a federal habeas
petition had already expired. And prior to his transfer, he was in state custody with full access to
Pennsylvania legal materials. Thus, the out-of-state transfer does not rise to the level of
“extraordinary circumstances.” Cf. United States v. Thomas, 713 F.3d 165, 174–75 (3d Cir.
2013) (holding that although petitioner’s “transfer to state custody may have made it more
difficult to file a timely § 2255 motion, increased difficulty does not, by itself, satisfy the
required showing of extraordinary circumstances”).
The “Impediment-to-Filing” Statutory Exception
Petitioner also asserts that he is entitled to relief under 28 U.S.C. § 2244(d)(1)(B) because
there were “other impediments created by state action that prevented [him] from timely filing his
Federal Habeas Petition.”
Under § 2244(d)(1)(B), the statute of limitations for the filing of a habeas corpus petition
does not begin to run until “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.” The AEDPA does not define
“impediment to filing,” and the Third Circuit Court of Appeals has not yet defined the phrase.
Pabon, 654 F.3d at 404. Other courts have found, however, that an “impediment to filing” might
exist where a state court refuses to rule on a constitutional issue properly before it, Lackawanna
Cty. Dist. Attorney v. Coss, 532 U.S. 394, 405 (2001); where a clerk’s office fails to timely file a
petition, Critchley v. Thaler, 586 F.3d 318, 320 (5th Cir. 2009); where a state delays a prisoner’s
receipt of notice that the judgment in his case is final, Earl v. Fabian, 556 F.3d 717, 726 (8th Cir.
2009); or where a prison offers inmates an inadequate law library, Whalem/Hunt v. Early, 233
F.3d 1146, 1148 (9th Cir. 2000). Whatever the facts of a particular case, the plain language of the
statute makes clear that the prisoner must be “prevented” from filing a petition for habeas corpus.
28 U.S.C. § 2244(d)(1)(B).
Here, no matter the standard that applies, Petitioner has not established that he is entitled
to take advantage of a delayed “trigger” date under § 2244(d)(1)(B). None of the alleged
impediments he has identified were “created by State action in violation of the Constitution or
laws of the United States.” Id. (emphasis added). At bottom, Petitioner’s contention is that the
state courts misapplied state law in finding that his PCRA petitions were untimely and did not
satisfy any of the exceptions to the timeliness requirement. However, since this Court must defer
to the state courts’ holdings with regard to whether Petitioner’s PCRA petitions were timely, see
Merritt, 326 F.3d at 165–66, it can hardly be said that the mere fact that the state courts reached
an unfavorable decision entitles Petitioner to seek refuge under § 2244(d)(1)(B). Moreover,
insofar as Petitioner is contending that his transfer to Virginia constitutes a state-created
impediment to filing, the Court rejects that argument for the same reasons it found that the
transfer did not justify equitably tolling.5 See also Bandy v. Wenerowics, No. CIV.A. 13-673,
2013 WL 6231312, at *6 (E.D. Pa. Dec. 2, 2013) (rejecting similar argument under § 2244(d)
(1)(B) because “even if the transfer to the Virginia correctional institution would constitute
governmental interference, this transfer did not occur until well after the AEDPA limitations
period had expired”).
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. 28 U.S.C. § 2253 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 Petitioner’s claims should be denied as
untimely. Accordingly, a certificate of appealability will be denied.
Additionally, if a petitioner satisfies the basis requirements of § 2244(d)(1) (B), the
limitations period begins when the impediment is removed. Pabon v. Mahonoy, 654 F.3d 385,
403–404 (3d Cir.2011) (citing § 2244(d)(1)(B)). According to the evidence Petitioner has
submitted, he returned to the custody of the Pennsylvania DOC on March 26, 2012. Thus, the
limitations period would have restarted on that date. The instant petition, however, was not filed
until more than three years later – far beyond any possible enlargement of the limitations period
to which Petitioner would have been entitled under § 2244(d)(1) (B).
For the reasons set forth above, Respondents’ motion will be granted, the petition for writ
of habeas corpus will be dismissed as untimely, and a certificate of appealability will be denied.
A separate Order follows.
DATED: February 28, 2017
BY THE COURT:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
175 Progress Dr.
Waynesburg, PA 15370
(via First Class U.S. Mail)
Rusheen R. Pettit
Office of the District Attorney
(via ECF electronic notification)
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