Green v. Capozza

• Decision Date: 25 February 2020
• Docket Number: Civil Action No. 20-172
• Parties: ANTONIO L. GREEN, Petitioner, v. MARK CAPOZZA, Respondent.
• Court: U.S. District Court — Western District of Pennsylvania

ANTONIO L. GREEN, Petitioner, v. MARK CAPOZZA, Respondent.

Civil Action No. 20-172

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 25, 2020

District Judge Nora Barry Fischer/Magistrate Judge Maureen P. Kelly

REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition") be dismissed pre-service pursuant to Rule 4 of the Rules Governing Section 2254 Cases because the Petition is time barred and that a certificate of appealability be denied.

II. REPORT

Antonio L. Green ("Petitioner") is a state prisoner, challenging his convictions for, inter alia, attempted homicide and aggravated assault in connection with the shooting of an adult male and a female child. Because the Petition was not filed within one year of Petitioner's conviction becoming final, the Petition should be dismissed.

A. Factual History

We take judicial notice of the Pennsylvania Superior Court decision in a Memorandum filed on November 19, 2013 relative to Petitioner's second Post Conviction Relief Act ("PCRA") proceedings. The Superior Court recounted the facts underlying Petitioner's convictions as follows.

The evidence revealed that on August 25, 2003, the police were called to a shooting on Bausman Street in the Knoxville area of the City of Pittsburgh. When [the police] arrive, they discovered a two-year-old girl, Atavia Carter, had been shot in the leg. [Atavia] was immediately rushed to Children's Hospital. [The police] also discovered another victim, Antoine Roach, who was shot in the leg. The evidence also revealed that approximately forty-five minutes before the shooting, [ ] Roach had a heated argument with [Green]. In the course of that argument, Green made threats to kill [ ] Roach. [Roach] was unable to identify the individual who shot at him, but did confirm that there was a heated argument with [Green] shortly before the shooting. The Commonwealth also presented testimony from Richard Anderson, a neighbor who witnessed the incident. [Anderson] testified that he initially saw the argument between [ ] Roach and an individual in a black Cadillac. Approximately one-half hour later, [Anderson] saw an individual[, who] he identified at trial as [Green,] approach the area where [ ] Roach was sitting on the front stoop with his niece, [Atavia]. [Anderson] heard gunfire and saw [Green] running from the area of the shooting. [Anderson] positively identified [Green] as the individual he saw approach the area on foot, fire at the victims and then flee.

Aron Carter, Atavia's father, testified that he was present inside the home on the day of the shooting. [Carter] heard an argument outside and saw [ ] Roach arguing with [Green], who was in a black Cadillac. [Carter] heard [Green] state to [ ] Roach that he was going to do a "187." [Carter] testified that he understood that to mean, in street parlance, that Green would kill [ ] Roach. [Carter] also testified that during this verbal altercation, he was standing approximately a sidewalk length away from the car and could see a black handgun sitting on [Green's] lap. Although [Carter] initially brought his daughter inside because of concern over the altercation, after some time had elapsed, he believed that it was safe for her to go back outside. [Carter] took [Atavia] outside and told her to stay on the steps. Within seconds of reentering the house, [Carter] heard approximately three gun shots. As [Cater] [sic] ran outside, he saw his daughter lying on the ground and could see the back of an individual running around the corner of a building. Although he could not see the face of this individual, based upon this person's body structure and clothing that he was wearing, [Carter] believed it was the same individual [whom] he had seen arguing with [ ] Roach fifteen to twenty minutes earlier.

Com. ex rel. Green v. Coleman, 234 WDA 2013, 2013 WL 11250791, at *1 (Pa. Super. Nov. 19, 2013) (quoting Com. v. Green, 959 A.2d 460 (Pa. Super. 2008) (unpublished memorandum at 1-3) (quoting Trial Court Opinion, 1/19/07, at 2-3), appeal denied, 962 Pa. 1195 (Pa. 2008)).

B. Procedural History

1. State Court

The Superior Court recounted the procedural history in the state courts as follows.

On June 22, 2005, a jury convicted Green of criminal attempt-homicide, aggravated assault (two counts), and a firearms not to be carried without a license. At the conclusion of a July 11, 2005, bench trial, the trial court also found Green guilty of persons not to possess firearms. On November 2, 2005, the trial court imposed a sentence of 15 to 30 years' imprisonment for the attempted homicide conviction, and a consecutive sentence of 10 to 20 years' imprisonment for the aggravated assault of the child victim. His timely filed post sentence motion was denied by the trial court on March 2, 2006.

On May 30, 2006, Green filed a pro se motion to reinstate his appellate rights, which was granted on June 1, 2006. Thereafter, he filed a direct appeal nunc pro tunc, in which he challenged, inter alia, the sufficiency of the evidence supporting the intent to kill element of his conviction of attempted homicide. This Court affirmed his judgment of sentence on direct appeal, and, on December 2, 2008, the Pennsylvania Supreme Court denied his petition for allocator review.

Green filed a timely pro se PCRA petition on January 26, 2009, in which he challenged, inter alia, the ineffectiveness of counsel for failing to object to the amendment of his criminal information before the preliminary hearing to include the charge of attempted homicide. Counsel was appointed, but later filed a petition to withdraw from representation and accompanying Turner/Finley no merit letter. On February 19, 2010, the PCRA court granted counsel's petition to withdraw, and notified Green of its intention to dismiss the PCRA petition without first conducting an evidentiary hearing. See Pa.R.Crim.P. 907. On June 10, 2010, the PCRA court entered an order denying Green's petition.

On August 23, 2012, Green filed the present, pro se Petition for Writ of Habeas Corpus ad Subjiciendum. On September 17, 2012, the PCRA court notified Green of its intention (1) to treat the filing as a PCRA petition, and (2) to dismiss the petition as untimely filed and meritless. Green filed a pro se brief and a pro se amended brief in opposition of the court's notice. However, on January 2, 2013, the court entered an order dismissing Green's petition. This appeal followed.

Id. at 2. The Superior Court affirmed the denial of relief in the second PCRA proceedings,finding that the second PCRA Petition was untimely filed and Petitioner failed to establish any exception to the PCRA statute of limitations. Id.

We take further judicial notice of the Superior Court's Memorandum filed on February 28, 2019, which recounted the history of Petitioner's third PCRA petition. The Superior Court recounted the history of the third PCRA petition as follows:

On September 12, 2017, Appellant filed pro se his third PCRA petition. On November 7, 2017, the PCRA court filed a Pa.R.Crim.P. 907 notice of its intent to dismiss his petition as untimely filed, and Appellant subsequently filed a timely response. Nevertheless, the PCRA court dismissed his petition on January 25, 2018, and, on February 15, 2018, Appellant filed a timely notice of appeal. Thereafter, the PCRA court directed him to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied. The PCRA court then filed a Rule 1925(a) opinion.

Com. v. Green, 345 WDA2018, 2019 WL 990499, at *1 (Pa. Super. Feb. 28, 2019). The Superior Court again affirmed the denial of relief in his third PCRA petition, again finding the third PCRA Petition to be untimely filed under the PCRA statute of limitations and that Petitioner had failed to establish any exception.

2. Federal Court

Petitioner purportedly signed the instant Petition on January 16, 2020, but it was not received by the Clerk's Office until February 4, 2020. Attached to the form Petition was a filing also titled "Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254," which is more in the nature of a brief in support of the Petition ("Brief in Support"). ECF No. 1-1.

In Ground One of the Petition, Petitioner asserts that:

Petitioner's consecutive sentences for criminal attempt homicide and aggravated assault should have merged for sentencing; Petitioner was sentenced beyond the statutory maximum[.]

ECF No. 1 at 5. In what he labels the "Statement of Issue Presented for Review" in the Brief in Support, Petitioner sets forth the following claim:

Was the state court's ruling that the Petitioner was required to hurdle the state time bar as a basis for it to rule on a non-waivable claim on an illegal sentence contrary to federal law, where Petitioner was sentenced beyond the statutory maximum and under consecutive sentences that should have merged.

ECF No. 1-1 at 5.

C. Discussion

1. Rule 4

The Petition has not been served yet but pursuant to Rule 4 of the Rules Governing Section 2254 cases, this Court may dismiss the Petition if it plainly appears on its face that the Petitioner is not entitled to habeas relief.

Rule 4 provides in relevant part that:

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

In interpreting Rule 4, the Advisory Committee Notes to Rule 4 observe that:

28 U.S.C. § 2243 requires that the writ shall be awarded, or an order to show cause issued, "unless it appears from the application that the applicant or person detained is not entitled thereto." Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions.

...