Jordan v. Tice

DAMAR LAMONT JORDAN, Petitioner, v. ERIC TICE; ATTORNEY GENERAL OF PENNSYLVANIA;DISTRICT ATTORNEY OF ERIE COUNTY, PENNSYLVANIA, Respondents

Case No. 1:18-cv-00384 (Erie)

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

May 20, 2020

RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE

OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 5)

Before the Court is a petition for a writ of habeas corpus filed by state prisoner Damar Lamont Jordan (Jordan) under 28 U.S.C. § 2254. ECF No. 2. He is challenging the judgment of sentence imposed on him by the Court of Common Pleas of Erie County, Pennsylvania at its criminal docket number CP-25-CR-0003384-2012. Respondents argue that Jordan's petition is barred by the applicable statute of limitations. For the reasons discussed in this opinion, the Court agrees and will dismiss Jordan's petition with prejudice.¹

I. Factual and Procedural Background

A. The underlying offenses.

The Court takes the following factual and procedural background from the Pennsylvania Superior Court's opinion addressing Jordan's direct appeal from his conviction and sentence:

On September 30, 2012, in the 600 block of Wallace Street, Jordan shot and killed Kendall Bryant and seriously wounded Ramone Lemon. N.T., 4/25/13, at 7-8. Thereafter, the Commonwealth charged Jordan with murder (18 Pa. C. S. A. § 2501(a)), attempted murder (18 Pa. C. S. A. §§ 901, 2501(a)), two counts of aggravated assault (18 Pa. C. S. A. § 2702(a)(1)), two counts of recklessly endangering another person (18 Pa. C. S. A. § 2705), possessing aninstrument of crime (18 Pa. C. S. A. § 907(a)) and firearms not to be carried without a license (18 Pa. C. S. A. § 6106(a)(1)).

Jordan pled guilty pursuant to an open plea to third-degree murder and aggravated assault. In exchange, the Commonwealth withdrew all other charges. On June 20, 2013, the trial court sentenced Jordan to serve 180 to 360 months of imprisonment for his conviction of third-degree murder and 66 to 132 months of imprisonment for his conviction of aggravated assault. The trial court imposed the term of imprisonment for aggravated assault consecutively to the term of imprisonment for third-degree murder.

On July 2, 2013, the trial court denied Jordan's motion to modify his sentence. Thereafter, Jordan filed a timely notice of appeal followed by a court-ordered Pa.R.A.P.1925(b) statement. The trial court filed its Pa.R.A.P.1925(a) opinion on September 6, 2013.

Commonwealth v. Jordan, 2014 WL 10986158, at *1 (Pa. Super. Ct. Feb. 11, 2014).² The Superior Court affirmed Jordan's conviction and sentence on February 11, 2014. Id. Jordan did not petition for allowance of appeal to the Pennsylvania Supreme Court.

B. State Post-Conviction Proceedings.

On May 12, 2014, Jordan petitioned under the Pennsylvania Post Conviction Relief Act, 42 Pa. C. S. A. § 9545, et seq. ECF No 10-2, p. 1.³ The Court of Common Pleas for Erie County dismissed his petition for post-conviction relief on September 2, 2014. Jordan appealed and the Pennsylvania Superior Court affirmed the Common Pleas Court's dismissal on May 22, 2015. SeeCommonwealth v. Jordan, 2015 WL 7259326 (Pa. Super. Ct. May 22, 2015). Jordan's petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on August 28, 2015. Commonwealth v. Jordan, 128 A.3d 1205 (Pa. 2015).⁴

Jordan filed a second petition for post-conviction relief in the Common Pleas Court on May 20, 2016. ECF No. 10-3, p. 11. There, Jordan alleged that he was entitled to relief under the United States Supreme Court's decision in Alleyne v. United States, 570 U.S. 99 (2013), which was published on June 17, 2013—three days before Jordan was sentenced. That petition was denied as untimely on September 26, 2016, after the Superior Court determined Jordan failed to prove an exception to the PCRA's timeliness requirements found at 42 Pa. C. S. §9545(b). See Jordan, 2017 WL 2875416, p. 2. Jordan appealed and the Superior Court affirmed on July 6, 2017. Jordan did not seek review in the Pennsylvania Supreme Court.

C. Proceedings in Federal Court

Jordan filed the instant petition for a writ of habeas corpus with this Court on December 10, 2018. ECF No. 2. This Court entered an order directing the Office of the District Attorney of Erie County to enter an appearance and to file an answer to Jordan's petition. ECF No. 3.⁵ On February 28, 2019, Assistant District Attorney MoEy W. Anglin entered an appearance. ECF No. 6. On March 17, 2019, the District Attorney's office filed a Response to Jordan's petition. ECF No. 9. Copies of the relevant state appellate filings were provided that same day. ECF No. 10. A copy of the state court record was filed with our Clerk of Court on April 2, 2019. Jordan did not reply. The petition is, therefore, ready for disposition.

II. Petitioner's Claims

Jordan's petition presents two claims. First, he alleges that "[b]eing an amateur litigant, I filed what should have been a § 2254 habeas petition, within the one-year AEDPA time limitation, but in the entirely wrong forum, as a subsequent PCRA petition. Nevertheless, the state court barred my rights to file as being untimely." ECF No. 2, p. 5. As a second claim for relief, Jordan challenges the legality of his sentence under Alleyne, supra. ECF No. 2, p. 8. The Respondents acknowledge that Jordan might have benefited from the Alleyne decision, but for the untimeliness of his petition. ECF No. 9, p. 5.

III. The AEDPA Statute of Limitations Bars Jordan's Petition.

A. The Habeas Corpus Legal Standard

Habeas corpus is an "'extraordinary remedy' reserved for defendants who were 'grievously wronged' by the criminal proceedings." Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)). In enacting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress "significantly limited the federal court's power to grant a writ of habeas corpus." Tolbert v. Ferguson, 2019 WL 4677357 at *2 (E.D. Pa. Aug. 8, 2019). Under § 2254, a district court may entertain an application for a writ of habeas corpus filed by a person in state custody "only on the ground that he is in custody in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a). Federal courts also must give considerable deference to determinations made by state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010). Thus, if a claim presented in a § 2254 petition has been adjudicated on the merits in state court proceedings, habeas relief cannot be granted unless:

the adjudication of the claim (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 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254 (d). It is the habeas petitioner's burden to show that the state court's decision was contrary to or an unreasonable application of United States Supreme Court precedent or an unreasonable determination of the facts. Moreno v. Ferguson, 2019 WL 4192459, at *3 (W.D. Pa. Sept. 4, 2019).

The United States Court of Appeals for the Third Circuit has emphasized the heavy burden habeas petitioners bear: "even 'clear error'" by the state courts "will not suffice." Orie v. Sec. Pa. Dept. of Corrections, 940 F.3d 845, 850 (3d Cir. 2019). Rather, the state court must be wrong "beyond any possibility for fair-minded disagreement." Id. (citations and some internal quotations omitted). Moreover, the factual determinations of the state courts are presumed correct. See 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.").

B. AEDPA Statute of Limitations

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 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;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, ifthat 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, a court must determine the "trigger date" for the one-year limitations period under section 2244(d)(1). See Caldwell v. Mahally, et al., 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 under ...