Danner v. Cameron

• Decision Date: 01 July 2013
• Docket Number: Civil No. 1:CV–11–00946.
• Citation: 955 F.Supp.2d 410
• Parties: David Russell DANNER, Petitioner, v. Kenneth P. CAMERON, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

955 F.Supp.2d 410

David Russell DANNER, Petitioner,

v.Kenneth P. CAMERON, et al., Respondents.

Civil No. 1:CV–11–00946.

United States District Court, M.D. Pennsylvania.

July 1, 2013.

David Russell Danner, Coal Township, PA, pro se.

Albert C. Ondrey, Towanda, PA, for Respondents.

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

Petitioner David Russell Danner (“Danner”), who is presently incarcerated at the State Correctional Institution in Coal Township, Pennsylvania, initiated this action on May 17, 2011, by filing a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended August 18, 2011. (Doc. 11.) In the petition, Danner challenges his 2008 conviction and sentence in the Court of Common Pleas of Bradford County, Pennsylvania (“trial court” or “Bradford County court”). For the reasons that follow, the petition will be denied.

I. Background

On April 24, 2008, Danner was found guilty of rape, sexual assault, and indecent assault following a jury trial in the Bradford County court. ( See Doc. 22–8 at 8 (Respondents' Reproduced Record).) As stated by the Pennsylvania Superior Court in its decision affirming the PCRA court's denial of post-conviction collateral relief: “The charges stemmed from allegations Danner, while on a hunting trip, engaged in sexual intercourse with his then 15 year old daughter.” (Doc. 22–9 at 45; Commonwealth v. Danner, No. 2144 MDA 2008, 988 A.2d 716 (Pa.Super.Ct. Nov. 17, 2009).) On August 4, 2008, the trial court sentenced Danner to an aggregate term of imprisonment of 11 to 22 years. ( See Doc. 22–8 at 1, Sentencing Order.) Danner was represented by counsel at trial and sentencing. ( See Doc. 22–8 at 2–22.)

Danner did not file a direct appeal to the Superior Court of Pennsylvania. On September 9, 2008, Danner filed a counseled petition for post-conviction collateral relief under Pennsylvania's Post–Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. Ann. §§ 9541–9546, as amended on October 31, 2008. ( See Doc. 22–8 at 33–43.) In his PCRA petition, Danner set forth several claims of ineffective assistance of trial counsel, claiming that (1) trial counsel failed to object to the prosecution's leading questions, and (2) trial counsel failed to present witnesses to rebut the victim's testimony.¹ ( See id.)

On November 11, 2008, the trial court, now sitting as the PCRA court, issued an order noticing its intention to dismiss the PCRA petition. (Doc. 22–8 at 44–45.) However, before a final order was entered, Danner filed a notice of appeal to the Pennsylvania Superior Court on December 10, 2008. ( See Doc. 13 ¶ 1(g).) A second notice of appeal was filed on March 17, 2009, due to procedural confusion arising from Pennsylvania's Rules of Criminal Procedure. ( Id. ¶ 1(h).) The appeals were consolidated by Superior Court order dated May 15, 2009. ( Id. ¶ 1(I).) Danner raised the following issues on appeal: ²

I. Was trial counsel ineffective for failure to call and secure witness to testify at the trial on behalf of [Danner]?

II. Was trial counsel ineffective during the course of the trial for not objecting to numerous leading questions by the prosecution?

(Doc. 22–9 at 46.)

On November 17, 2009, the Superior Court affirmed the PCRA court decision. ( See id. at 44–50.) Danner filed a petition for allowance of appeal, raising the following issues:

I. The Superior Court committed error when it did not address an issue finding that it was not raised in the PCRA petition when in fact it was and was part of the Reproduced Record.

II. The Superior Court's decision was not in accord with the standards set forth by this Court when evaluating ineffectiveness of Trial Counsel when credibility is at issue.

III. The Superior Court has set an unreasonable and unconstitutional burden on the Petitioner when stating that in order to prove prejudice the Petitioner must prove that the Commonwealth could not have entered evidence in a correct manner, specifically the Petitioner would have to prove what the Commonwealth[']s witnesses would have said if they had not been asked leading questions but questioned properly.

(Doc. 22–10 at 2.) The Pennsylvania Supreme Court denied allocatur on May 19, 2010. (Doc. 22–11 at 21.)

On May 17, 2011, Danner filed his original habeas petition. (Doc. 1.) By order dated July 27, 2011, the court directed Danner to file one all-inclusive habeas petition raising all grounds for relief.³ (Doc. 8.) Thereafter, Danner filed his amended petition on August 18, 2011. (Doc. 11.) On September 19, 2011, the court issued an order directing service of the amended petition. (Doc. 12.) On October 19, 2011, Respondents responded to the petition. (Doc. 13.) Danner filed his reply on November 17, 2011. (Doc. 17.) On August 3, 2012, the court directed Respondents to file a complete copy of the state court record, (Doc. 21), which followed on September 5, 2012, (Doc. 22). After the court received further briefing from the parties in accordance with a January 10, 2013 order, (Doc. 27), this matter is now ripe for disposition.

II. DiscussionA. Timeliness of the Habeas Petition

In their answer to the petition, as a threshold matter, Respondents first argue that the instant § 2254 petition is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Upon review, the court finds that the petition has been timely filed.

The court may “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214 (Apr. 24, 1996). See28 U.S.C. § 2244(d)(1). A state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

(d)(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;

* * * (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 subsection.

28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir.1999). Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir.2001).

In the instant case, after being found guilty by a jury, Danner was sentenced to a term of imprisonment of 11 to 22 years by the Bradford County court on August 4, 2008. Danner did not file a direct appeal. Therefore, his conviction became final on September 8, 2008.⁴See42 Pa. Cons.Stat. Ann. § 9545(b)(3) (“judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review”). The one-year period for the statute of limitations commenced running as of that date, and expired on September 8, 2009. Hence, the federal petition, which was filed on May 17, 2011,⁵ appears to be untimely. However, the court's analysis does not end there. Consideration of both statutory and equitable tolling, if necessary, must be undertaken.

With respect to statutory tolling, section 2244(d)(2) tolls the statute of limitations with respect to 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.” 28 U.S.C. § 2244(d)(2). On September 9, 2008, Danner filed a PCRA petition in the Bradford County court. While a properly-filed PCRA petition will toll the running of AEDPA's statute of limitations, an improperly-filed PCRA petition does not have the same effect. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.2001) ( “ ‘properly filed’ state-court [post-conviction] petitions must be ‘pending’ in order to toll the limitations period. Thus, a state court petition like Tinker's that is filed following the expiration of the federal [AEDPA] limitations period cannot toll that period because there is no period remaining to be tolled.”) (some internal quotations omitted), reh'g denied,273 F.3d 1123 (11th Cir.2001).

The federal limitations period in the instant case expired on September 8, 2009. However, prior to this date, Danner filed a PCRA petition in the Bradford County court on September 9, 2008. As a result, the statute of limitations became tolled at that point. Prior to his filing date, the statute began running on September 8, 2008, the date his conviction became final. It was tolled on September 9, 2008, when Danner timely filed his PCRA petition. At that time, one day had elapsed. On May 19, 2010, the Pennsylvania Supreme Court denied Danner's petition for allowance of appeal, at which time the statutory tolling ceased to apply and the § 2244(d)(1) filing deadline resumed. Thus, the filing deadline for the instant habeas petition expired on or about May 18, 2011 (May 19, 2010 plus the 364 days remaining on the statute prior to tolling by filing of PCRA petition). Based on the foregoing, since the instant petition was filed on May 17, 2011, it is clear that Danner filed his action within the requisite one-year statutory deadline, and the petition is timely.⁶

B. Claims Presented in the Habeas Petition

Now that it is clear that the habeas petition...