Ferguson v. Tice, Case No. 1:18-cv-00388

MICHAEL D. FERGUSON, Petitioner v. ERIC TICE, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,and DISTRICT ATTORNEY OF CRAWFORD COUNTY Respondents

Case No. 1:18-cv-00388

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

January 28, 2021

RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 4]MEMORANDUM OPINION

Before the Court is a petition for a writ of habeas corpus filed by Michael D. Ferguson pursuant to 28 U.S.C. § 2254. ECF No. 4. For the reasons that follow, the petition will be denied.¹

I. Background

A review of the record and the criminal docket sheet for Ferguson's underlying convictions in Commonwealth v. Ferguson, Nos. CP-20-CR-0000761-2012 and CP-20-0000874-2012 (Crawford Cnty. Com. Pl.),² discloses the following relevant facts. Ferguson was convicted by a jury of multiple charges related to three armed robberies of taverns and an assault on his co-conspirator. Ferguson filed a direct appeal, in which the Pennsylvania Superior Court affirmed his convictions but vacated his judgment ofsentence and remanded for resentencing. Commonwealth v. Ferguson, 107 A.3d 206 (Pa. Super. 2015). Ferguson was resentenced on February 24, 2015 for an aggregate term of 34 to 71 years' imprisonment.

Ferguson filed a direct appeal from that judgment of sentence. The Pennsylvania Superior Court affirmed the judgment of sentence on January 8, 2016. Commonwealth v. Ferguson, 136 A.3d 1028 (Pa. Super. Jan. 8, 2016) (unpublished memorandum). On February 11, 2016, Ferguson filed a petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq., which was dismissed by the trial court. The Pennsylvania Superior Court affirmed the dismissal of the PCRA petition on January 9, 2018. Commonwealth v. Ferguson, 2018 Pa. Super. Unpub. LEXIS 62 (Pa. Super. Jan. 9, 2018) (unpublished memorandum).

Ferguson filed the instant petition for a writ of habeas corpus on or about December 17, 2018. ECF No. 1. Respondents filed a response to the petition on June 12, 2019. ECF Nos. 19-20.

II. Analysis

A. AEDPA Statute of Limitations

Respondents argue, inter alia, that at least certain claims in the petition should be dismissed as untimely. ECF No. 20 at 16-17. The Antiterrorism and Effective Death Penalty Act of 1996 ("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 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 filingby such State action;

(C) 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

(D) the date on which the facts supporting 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 section.

28 U.S.C. § 2244(d).

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). Caldwell v. Mahally, et al., 2019 WL 5741706, *5 (W.D. Pa. Nov. 5, 2019). 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). Id. Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. Id.

1. Trigger Date Calculation

Ferguson sets forth seven grounds for relief in his petition, all of which concern assertions of errors occurring before or at his trial. ECF No. 4. These claims do not implicate newly enunciated constitutional rights or facts that were discovered later. Furthermore, there were no state-created impediments that prevented Ferguson from raising these claims sooner. Consequently, the "trigger date" for these claims is the date on which his judgment of sentence became final. See Swartz v. Meyers, 204 F.3d 417, 419 (3dCir. 2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review).

Ferguson's judgment of sentence became final on or about February 8, 2016, at the expiration of the time for filing with the Pennsylvania Supreme Court a petition for allowance of appeal from the Pennsylvania Superior Court's affirmance of the judgment of sentence. Pa.R.A.P. 1113(a). The one-year limitations period for filing a habeas corpus petition began to run on that date. 28 U.S.C. § 2244(d)(1)(A). Accordingly, Ferguson had to file any federal habeas petition by February 8, 2017. Because the instant habeas petition was filed on December 17, 2018, his petition is statutorily time-barred. Given this deficiency, the Court must determine whether he can take advantage of the statutory tolling provision set out in Section 2244(d)(2).

2. Statutory Tolling

Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a "properly filed" state post-conviction proceeding.

Ferguson filed his PCRA petition on February 11, 2016, only three days after the statute of limitations had begun to run. That PCRA petition was "properly filed," thus, the proceedings thereupon tolled the statute of limitations until they were concluded on January 9, 2018, when the Pennsylvania Superior Court affirmed the dismissal of the PCRA petition. The statute of limitations started to run again the following day, January 10, 2018. At that time, Ferguson still had 362 days remaining in which to file a timely petition (365-3=362). Pursuant to the prisoner mailbox rule, see Houston v. Lack, 487 U.S. 266 (1988), Ferguson filed the instant petition on December 17, 2018, 341 days later. Thus, his petition is timely.

Respondents argue that Ferguson should not get the benefit of statutory tolling for claims that were not raised in his PCRA petition. ECF No. 20 at 17. This argument was rejected by the United States Court of Appeals for the Third Circuit in Sweger v. Chesney, 294 F.3d 506 (3d Cir. 2002), where it held:

. . . [U]under § 2244(d)(2), a properly filed state post-conviction proceeding challenging the judgment tolls the AEDPA statute of limitations during the pendency of the state proceeding. Whether the federal habeas petition contains one or more of the claims raised in the state proceeding does not matter as long as the state proceeding and the federal habeas petition attack the same judgment.

Sweger, 294 F.3d at 520.

Accordingly, Respondents' argument is unavailing.

B. Ground 1: Due process violation (concealment of plea agreement)

Ferguson first asserts that he was denied due process when the Commonwealth: (1) concealed a plea agreement it had with his co-conspirator, Harry Boyer; and (2) elicited perjured testimony from Boyer concerning this agreement. ECF No. 4 at 10-11. Respondents argue, inter alia, that this claim should be dismissed because Ferguson did not exhaust it in state court. ECF No. 19 at 9.

As this Court has explained:

As a general matter, a federal district court may not consider the merits of a habeas petition unless the petitioner has "exhausted the remedies available" in state court. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). A petitioner satisfies the exhaustion requirement "only if [the petitioner] can show that [he or she] fairly presented the federal claim at each level of the established state-court system for review." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The purpose of the exhaustion requirement is to "give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts ... by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845.

To "fairly present" a claim for exhaustion purposes, the petitioner must advance the claim's "factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir. 2018)(quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). A petitioner may exhaust a federal claim either by raising it on direct appeal or presenting it in post-conviction PCRA proceedings. O'Sullivan, 526 U.S. at 845. Either way, the petitioner must present his federal constitutional claims "to each level of the state courts empowered to hear those claims." Id. at 847 ("requiring state prisoners [in order to fully exhaust their claims] to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State"). "Once a petitioner's federal claims have been fairly presented to the state's highest court, the exhaustion requirement is satisfied." Stoss v. Estock, 2019 U.S. Dist. LEXIS 83240, 2019 WL 2160464, at *3 (M.D. Pa. May 17, 2019) (citing Castille v. Peoples, 489

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