Dacenzo v. Mooney

• Decision Date: 17 October 2019
• Docket Number: CIVIL NO. 3:18 -CV-0892
• Parties: FREDERICO A. DACENZO, JR., Petitioner v. VINCENT MOONEY, et al., Respondents
• Court: U.S. District Court — Middle District of Pennsylvania

FREDERICO A. DACENZO, JR., Petitioner v. VINCENT MOONEY, et al., Respondents

CIVIL NO. 3:18 -CV-0892

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

October 17, 2019

(Judge Caputo)

MEMORANDUM

Frederico A. Dacenzo, Jr., a former Pennsylvania state prisoner,¹ filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2009 Lycoming County Court of Common Pleas guilty plea conviction to ten counts of sexual abuse of children (possession of child pornography) and one count of criminal use of a communication facility. (ECF No. 1.) Respondent argues that Mr. Dacenzo's petition is untimely. (ECF No. 17.) Mr. Dacenzo asserts that his Petition is timely based on a new rule of constitutional law made retroactively applicable to cases on collateral appeal. Petitioner contends that the Supreme Court's decision in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016),² made the new rule of constitutionallaw announced in Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)³ retroactively applicable to cases on collateral review. He claims his sentence is unconstitutional because the trial court violated Alleyne by considering elements of "other crimes" (a juvenile conviction) that were not found by the jury. (ECF No. 19.) For the following reasons Mr. Dacenzo's petition will be dismissed as untimely. A certificate of appealability will not issue.⁴

I. Relevant Procedural History

The Court takes the following factual background from the Pennsylvania Superior Court's opinion addressing Mr. Dacenzo's third untimely petition for collateral review under the Pennsylvania Post Conviction Relief Act (PCRA), 42 PA. CONS. STAT. § 9541, et seq.:

On October 13, 2009, Dacenzo entered a negotiated guilty plea to ten counts of sexual abuse of children (possession of child pornography) and one count of criminal use of a communication facility. Dacenzo was sentenced to an aggregate term of 10-20 years' imprisonment, with a 20-year probationary tail. Dacenzo was also ordered to register for ten years under Megan's Law. Dacenzo did not file post-sentence motions or a direct appeal. On August 13, 2012, Dacenzo filed a pro se PCRA petition; appointed counsel filed a motion to withdraw pursuant to Turner/Finley. On October 24, 2012, Dacenzo filed a motion to dismiss counsel's motion to withdraw. On December 6, 2012, the trial court entered an order giving Dacenzo notice of its intent to dismiss his PCRA petition, in accordance with Pa. R. Crim. P. 907(1), denyingDacenzo's motion to dismiss and granting counsel leave to withdraw.

On December 21, 2012, Dacenzo filed an objection to the court's intent to dismiss his petition. On January 8, 2013, the trial court dismissed Dacenzo's petition. Dacenzo appealed that decision; [the Superior Court of Pennsylvania] affirmed the trial court's order concluding that the petition was patently untimely and Dacenzo did not satisfy the "after-discovered fact" exception set forth in 42 Pa. C.S. § 9545(b)(1)(ii). See Commonwealth v. Dacenzo, 172 MDA 2013 (filed Sept. 19, 2013) (Pa. Super. 2013).

On December 11, 2014, Dacenzo filed a pro se motion to amend his sentence, seeking RRRI eligibility. On December 19, 2014, the court denied the motion stating that Dacenzo was not RRRI eligible due to his conviction for an offense that requires him to register under Megan's Law. See 61 Pa. C.S. § 4503(4). In January 2015, Dacenzo filed an appeal from the denial of his RRRI motion. On July 21, 2015, [the Superior Court] affirmed the denial of Dacenzo's RRRI petition, treating the petition as a serial PCRA petition, and concluding that the PCRA court lacked jurisdiction to grant Dacenzo any relief where his petition was patently untimely[,] and he did not plead and prove any PCRA time-bar exception. Commonwealth v. Dacenzo, 80 MDA 2015 (filed July 21, 2015) (Pa. Super. 2015).

Commonwealth v. Dacenzo, No. 237 MDA 2017, 2017 WL 3711064, at *1 (Pa. Super. Aug. 29, 2017) (internal footnotes omitted).

Mr. Dacenzo filed his third PCRA petition on February 23, 2016. (ECF No. 17-2 at 91 - 94.) Mr. Dacenzo argued that although his Petition was facially untimely, he met the requirements of 42 PA. CONS. STAT. §9545(b)(1)(iii), the newly recognized right exception, because he filed his Petition within 60 days of the Montgomery. (ECF No. 17-2 at 92.) He opined that the Supreme Court's ruling in Montgomery held "Alleyne, supra, retroactively applicable" to cases on collateral review, entitled him to resentencing. (Id.) On September 30, 2016, the trial court dismissed the petition as untimely "withoutexception to the PCRA time-bar." (Id. at 97 and 99.) The Superior Court of Pennsylvania denied Mr. Dacenzo's appeal on August 29, 2017. The Superior Court held Mr. Dacenzo's claim was without merit as Alleyne was not retroactive to cases on collateral review and that while the Supreme Court in Montgomery held that the holding of Miller was a substantive rule of constitutional law to which state collateral review courts were required to give retroactive effect, Miller had "no applicability to the instant case". See Dacenzo, 2017 WL 3711064, at *3 (citing Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (Alleyne did not announce a new rule of constitutional law and courts cannot review alleged illegality of sentence claim raised in untimely PCRA petition for which no time-bar exception applies due to lack of jurisdiction) and Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (Alleyne does not apply retroactively to collateral attacks on mandatory minimum sentences)). The Supreme Court of Pennsylvania denied Mr. Dacenzo's Petition for Allowance of Appeal on March 14, 2018. (Id. at 108.)

Mr. Dacenzo filed the instant habeas petition on April 21, 2018, while housed at the Retreat State Correctional Institution in Hunlock Creek, Pennsylvania. (ECF No. 1.) On May 22, 2018, the Court issued a notice of election pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mayson v. Meyers, 208 F.3d 414 (3d Cir. 2000).⁵ (ECFNo. 3.) After Mr. Dacenzo elected to proceed on his Petition as filed (ECF No. 4), the Court served the Petition on Respondent (ECF No. 8). Respondent filed an Answer to the Petition arguing Mr. Dacenzo's Petition is untimely without exception, his claims are procedurally defaulted, and that federal habeas relief is not available to address his claim that the state court erred in calculating his prior record score when sentencing him. (ECF No. 17.) Mr. Dacenzo filed a Reply in which he restated his grounds for relief and argues his third PCRA Petition was timely. (ECF No. 19.)

II. Discussion

A. Relevant Law

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) provides a one-year statute of limitations for the filing of an application for a writ of habeas corpus by a person in state custody. See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), the limitations period runs 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 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); see Wall v. Kholi, 562 U.S. 545, 550, 131 S.Ct. 1278, 1283, 179 L.Ed.2d 252 (2011); see also Jenkins v. Supt. of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013). Where a defendant fails to file post-sentence motions, his judgment becomes final thirty days from the date of sentencing. See 42 PA. CON. STAT. § 9545(b)(3); Pa. R. Crim. P. 720(A)(3).

The one-year AEDPA limitations period is subject to both statutory and equitable tolling. Statutory tolling for a federal habeas claim occurs during the time "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending ..." 28 U.S.C. § 2244(d)(2). "[A] petition is properly filed when 'its delivery and acceptance are in compliance with the applicable laws and rules governing filing.' A properly filed petition must be in the proper form, and be timely delivered to the proper court or office." Satterfield v. Johnson, 434 F.3d 185, 101-192 (3d Cir. 2006) (quoting Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000)) (internal citations omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005) (where the state court rejects petitioner's PCRA petition as untimely, the petition "was not 'properly filed' and [petitioner is] not entitled to statutory tolling under § 2244(d)(2)"). A state post-conviction motion or other collateral review is "pending" from the date it is filed until the date the court rules on the petition as well as "the time during which an appeal could be filed even if the appeal is not eventually filed." Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000).

The limitations period may be subject to equitable tolling when the petitioner shows that he "has been pursuing his rights diligently," and yet "some extraordinary circumstance stood in his way and prevented timely filing" of his habeas petition. Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010); Ross v. Varano, 712 F.3d 784, 803 (3d Cir. 2013). "However, courts need to be 'sparing in their use of' the doctrine," Pabon v. Mahanoy, 654 F.3d 385,...