Marcy v. Warden, SCI Graterford
| Decision Date | 17 April 2020 |
| Docket Number | 3:17-cv-00411 |
| Parties | JOSEPH D. MARCY, Petitioner, v. WARDEN, SCI GRATERFORD, et al. Respondents. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MARIANI)
(Magistrate Judge Arbuckle)
Presently before the Court1 is Magistrate Judge Arbuckle's Report and Recommendation (Doc. 22) to the Petitioner Joseph D. Marcy's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). Marcy contends that he is entitled to (1) have his conviction and sentence vacated and (2) a new trial by the Commonwealth of Pennsylvania (the "Commonwealth"). The Magistrate Judge recommended that Marcy could properly seek relief under § 2254, because the Superior Court of Pennsylvania (the "Superior Court") improperly applied Pennsylvania procedural law, rendering its decision, to deny Marcy relief under the Pennsylvania Post Conviction Relief Act ("PCRA") and reinstate his judgment of sentence, unreasonable. The Commonwealth objected to this recommendation arguing that the Superior Court overturned Marcy's PCRA petition anddenied him relief on "an adequate and independent state procedural ground." (Doc. 23, at 1). Accordingly, this Court must determine whether the Superior Court denied relief on an adequate and independent state procedural ground and whether Marcy has established that his procedural default should be excused. Because Marcy has not demonstrated cause and prejudice or a fundamental miscarriage of justice, his procedural default cannot be excused. As such, Marcy is not entitled to relief under § 2254, and the Report and Recommendation will not be adopted.
On February 17, 2011, Marcy was convicted of raping his six-year old daughter and other related charges. (Doc. 17-5, at 31-39). He subsequently filed a timely Notice of Appeal to the Superior Court. (Id. at 61). Before his direct appeal was adjudicated, Marcy proceeded to file two pro se Motions for Post-Conviction Collateral Relief on May 13, 2011 and June 19, 2012. (Doc. 17-6, at 90). The PCRA Court properly dismissed these PCRA petitions as premature, because Marcy's direct appeal was still pending. (Docs. 17-5, at 102; 17-6, at 91). On July 27, 2012, the Superior Court affirmed Marcy's judgment of sentence. (Doc. 17-5, at 103). Marcy did not petition to appeal his judgment of sentence to the Pennsylvania Supreme Court, rendering Marcy's judgment of sentence final on August 27, 2012. (Id.). See 42 Pa. Cons. Stat. § 9545(b)(3).
On October 15, 2012, the PCRA Court, apparently sua sponte as Marcy did not file a motion, reinstated Marcy's second PCRA petition filed on June 19, 2012 (the "PCRApetition"), appointed counsel for Marcy, and gave him three months to "supplement the motion filed of record." (Doc. 17-5, at 108). On the PCRA petition, Marcy checked the boxes that indicated he intended to raise claims of ineffective assistance of counsel and violations of his Constitutional rights. (Id. at 73). While Marcy did not check the box on the PCRA petition indicating that he intended to raise a claim of "newly discovered exculpatory evidence," Marcy did attach various affidavits. (Id. at 73, 89-94). One such affidavit, signed by Kimberly Marth, stated that the victim and principal witness in Marcy's criminal case had recanted her testimony, admitting to Marth that she had fabricated her allegations and expressing remorse. (Id. at 90). The entire text of this affidavit states:
My name is Kimberly Marth and I am writing on behalf of [Marcy] who is currently incarcerated after being convicted of sex crimes against his daughter. I am writing this letter in light of things told to me and several other people that, [the victim], had not told the truth in her testimony at trial against her father and that certain acts of the abuse in fact did not happen at all. She had just "made them up and doesn't know why." [The victim] also expressed that she is very sorry for doing this and is also ready to tell the truth.
(Id.). Finally, in the PCRA petition, Marcy indicated that he requested an evidentiary hearing, and he certified that Marth and several others would testify that the victim's testimony was false. (Id. at 88).
On March 15, 2013, Marcy complied with the PCRA Court's direction to file a Supplement to his PCRA petition. (Doc. 17-5, at 109). The text of the Supplement specifically incorporated the claims raised in his PCRA petition, while raising issues of ineffective assistance of counsel at trial, the jury's interpretation of the evidence, and errorsmade by the trial court. (Id.). Over a year later, on May 23, 2014, Marcy filed an Additional Supplement to his PCRA petition. (Doc. 17-6, at 2). The Additional Supplement explained that an investigator interviewed the victim, and she "recanted significant portions of her previous testimony, indicating that [Marcy] did not, at any time, have vaginal or anal sex with her, as she previously testified." (Id. at 5). It further explained that these statements were given voluntarily and with the consent of the minor victim's guardian. (Id. at 2).
On September 25, 2014 and February 19, 2015, the PCRA Court conducted Marcy's PCRA petition hearings. (Doc. 17-6, at 9, 21). During these proceedings, the court heard testimony from Marcy, the victim, a medical expert, and the attorney who represented Marcy at his original trial. (Id. at 10, 22). The PCRA Court ultimately granted Marcy's PCRA petition and ordered a new trial pursuant to 42 Pa. Con. Stat. § 9543(a)(2)(vi), which allows for relief "based upon exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced." (Id. at 55). Under § 9543(a)(2)(vi), the petitioner must prove by a preponderance of the evidence that:
(Id. at 59) (citing Commonwealth v. Medina, 92 A.3d 1213, 1218 (Pa. Super 2014)). The PCRA Court weighed "the inherent unreliability of recantation" evidence with its assessment of the victim's credibility based on "personally observing the witness, now eleven (11) yearsold, during her recantation testimony on direct and cross-examination and her demeanor throughout." (Doc. 17-6, at 59, 64). The PCRA Court concluded that though the victim "appeared reluctant at times, the recantation testimony was still credible." (Id. at 59). Notwithstanding this determination, the court explained that Marcy was entitled to a new trial even if it doubted the victim's testimony, because the recantation evidence presented by Marcy satisfied the four-prong test for relief based upon newly discovered exculpatory evidence. (Id. at 62).
The Luzerne County District Attorney appealed the PCRA Court's grant of a new trial to the Superior Court, which reversed the decision and reinstated Marcy's judgment of sentence. (Doc. 17-6, at 89-98). The Superior Court based its decision on waiver and jurisdictional issues, declining to address "whether the trial court abused its discretion in finding the victim's recantation testimony credible." (Id. at 93, n.3). In support of this decision, the Superior Court provided four conclusions. First, the affidavit attached to Marcy's PCRA petition from Marth was insufficient to raise a recantation claim, because Marcy "did not even mention a recantation claim in the Petition itself" by failing to indicate that he had "newly discovered exculpatory evidence." (Id. at 93). Second, though Marcy could have timely raised this recantation evidence in his Supplement, he did not mention the recantation claim there at all. (Id. at 94). Thus, Marcy waived his right to have the merits of this claim reviewed, because he knew of the recantation evidence at the time he filed the Supplement and failed to raise it. (Id.). Third, while the Additional Supplement adequatelyraised the issue of recantation, it was filed more than a year after Marcy's judgment of sentence became final, which rendered it time barred. The PCRA requires that any PCRA petition must be filed within one year of the date the judgment becomes final. (Doc. 17-6, at 95) (citing 42 Pa. Cons. Stat. § 9545(b)(1)). Since PCRA timeliness requirements are jurisdictional in nature, the court may not address the merits of untimely claims. (Id.) (citing Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (2010)). Fourth, even if the Marcy's Additional Supplement was filed within one year of his judgment of sentence becoming final, he failed to file it in accordance with the Pennsylvania Rules of Criminal Procedure, which provide that "a petitioner may only amend a PCRA petition by direction or leave of the PCRA Court." (Doc. 17-6, at 96) (citing Pa. R. Crim. P. 905(A)). Since Marcy never sought leave to amend his PCRA petition, he once again waived his recantation claim. (Doc. 17-6, at 97). On November 22, 2016, the Pennsylvania Supreme Court denied review of the Superior's Court's decision. (Id. at 99).
In January 2017, Marcy filed this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (the "habeas petition"), alleging denial of due process, equal protection of the laws, denial of the right to confrontation and compulsory process, and a brief in support of his habeas petition. (Docs. 1, 5).2 Marcy seeks relief in the form of overturning the Superior Court's ruling and reinstating the PCRA Court's grant of a new trial. (Doc. 1, at 6). After thefiling of a Mason-Myers Election (Doc. 13), the Commonwealth's Answer (Doc. 17), and a Traverse (Doc. 18), Marcy's habeas petition was referred to the Magistrate Judge for Report and Recommendation. On February 7, 2020, the Magistrate Judge issued a Report and Recommendation (Doc. 22), and the Commonwealth timely filed an objection and...
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