Howard v. McGinley, Case No. 1:19-cv-00155

NATHAN HOWARD, Petitioner v. SUPERINTENDENT THOMAS MCGINLEY, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,DISTRICT ATTORNEY OF ERIE COUNTY, Respondents

Case No. 1:19-cv-00155

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

October 29, 2020

RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1)MEMORANDUM OPINION AND ORDER

Before the Court is a petition for a writ of habeas corpus filed by Nathan Howard pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner is incarcerated at the State Correctional Institution at Coal Township, serving a sentence imposed by the Court of Common Pleas of Erie County, Pennsylvania. For the reasons that follow, the petition will be denied.¹

I. Background

The Pennsylvania Superior Court summarized the facts of the underlying criminal case as follows:

On April 26, 2014, police officers conducted surveillance of the El Patio Motel in Millcreek Township as part of an investigation of alleged drug activity. Officers received information that an individual known as "NASS" (Carnell Tinson) had been selling heroin from motel room 123. While conducting surveillance of the motel, officers observed [Howard] and Tinson enter room 123 at 5:07 p.m. At approximately 7:45 p.m., the officers saw Tinson exit room 123, enter a vehicle, and drive away. Officers followed Tinson but did not apprehend him.

At approximately 8:45 p.m., police officers executed a search of room 123 pursuant to a warrant. Inside the room the officers found [Howard], another individual, an envelope containing a quantity of heroin approximately half the size of a golf ball in plain view on the bed, a digital scale, lottery tickets, and a duffel bag belonging to [Howard]. Inside of the duffel bag was a denim jacket with $1,610 in cash in one of the pockets. Detective Adam Hardner found a cell phone in plain view in a bedroom. [Howard] admitted the cell phone belonged to him and consented to a search of the phone.

James Krayeski, a police informant, testified that he had purchased heroin from Tinson on several prior occasions and had contacted Tinson by cell phone to arrange the transactions. Krayeski had Tinson's cell number and gave it to the officers. There were two incoming text messages on [Howard's] cell phone originating from Tinson's cell phone number. When Detective Hardner read the text messages out loud to [Howard], [Howard] stated, "that mother fucker set me up." These text messages, sent at 8:31 p.m. and 8:42 p.m., stated, respectively, "flush the work" and "they are out back behind the building." Detective Hardner testified that, in his experience, "work" is a term that refers to drugs. Lieutenant Michael Nolan of the Erie Police Department Drug and Vice Unit testified that drug dealers typically accumulate large amounts of cash and use lottery tickets as packing material for heroin. Detective Hardner testified that, based on his experience, the text message "flush the work" would mean "flush the drugs down the toilet because the police are there."

ECF No. 5-1 at 1-3 (citations to trial transcript omitted).

A review of the record and the criminal docket sheet for Howard's underlying conviction in Commonwealth v. Howard, No. CP-25-CR-0001240-2014 (Erie Cnty. Com. Pl.),² reveals the following relevant procedural history.

On January 20, 2015, following a jury trial, Howard was convicted of one count of criminal conspiracy.³ On April 28, 2015, Howard was sentenced to 20-60 months' imprisonment. On May 8, 2015, Howard filed a post-sentence motion, which was denied. Howard subsequently appealed. The Pennsylvania Superior Court affirmed the judgment of sentence on September 22, 2016. ECFNo. 5-1. Howard did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.

On August 15, 2017, Howard filed a pro se petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq. The court appointed counsel for Howard, Appointed counsel filed a supplement to the PCRA petition. On January 10, 2018, the court dismissed the PCRA petition. Howard appealed, and the Pennsylvania Superior Court affirmed the dismissal on October 16, 2018, ECF No. 5-3. Howard filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on April 30, 2019.

Howard filed the instant petition for a writ of habeas corpus on May 29, 2019. Therein, he asserts three grounds for relief:⁴ (1) ineffective assistance of trial counsel for failure to raise lack of probable cause to arrest Howard; (2) ineffective assistance of trial counsel for failure to properly litigate a Fourth Amendment claim of illegal search and seizure; and (3) ineffective assistance of counsel for failure to object to false statements introduced at trial. Respondent District Attorney of Erie County filed a Response to the petition on July 25, 2019. ECF No. 5.

II. Analysis

A. Timeliness

Respondent first argues that the instant petition for writ of habeas corpus is untimely and should be dismissed. ECF No. 5 at 2.

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 pursuantto 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;

(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 U.S. Dist. LEXIS 192046, *17 (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. at *17-18. Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. Id. at *18.

Howard asserts three grounds for relief in his petition, all of which stem from his trial counsel's alleged ineffectiveness either before or during Howard's trial. These claims do notimplicate newly enunciated constitutional rights or facts that were discovered later. Furthermore, there were no state-created impediments that prevented Howard from raising these claims sooner. Consequently, the "trigger date" for his claim is the date on which Howard's judgment of sentence became final. 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).

Howard's judgment of sentence became final on October 24, 2016, at the expiration of the 30-day period for filing a petition for allowance of appeal in the Pennsylvania Supreme Court. 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, Howard had to file any federal habeas petition by October 24, 2017. Because the instant habeas petition was filed on May 29, 2019, after the one-year limitations period had expired, 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).

Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a "properly filed" state post-conviction proceeding. Howard filed his PCRA petition on August 15, 2017, by which time 295 days of his one-year limitations period had expired (October 24, 2016 through August 15, 2017). Those proceedings were "properly filed," and, thus, tolled the statute of limitations until they were concluded on April 30, 2019, when the Pennsylvania Supreme Court denied Howard's Petition for Allowance of Appeal. The statute of limitations started to run again the following day (May 1, 2019), and, at that point in time, Howard had 70 days (365 days - 295 days = 70 days) remaining to file a timely habeas petition. Howard filed the instant petition on May 29, 2019, 28 days later. Thus, his petition is timely.

B. Merits

1. Legal standards

The Court must consider the following legal principles:

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, if a state court rejects a claimed federal violation on the merits, to obtain habeas relief a petitioner must show that the ruling:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United

...