Pugh v. Overmyer

• Decision Date: 28 August 2017
• Docket Number: CIVIL ACTION NO. 3:15-CV-0364
• Parties: DOUGLAS B. PUGH, Petitioner v. MICHAEL D. OVERMYER, Respondent
• Court: U.S. District Court — Middle District of Pennsylvania

DOUGLAS B. PUGH, Petitioner v. MICHAEL D. OVERMYER, Respondent

CIVIL ACTION NO. 3:15-CV-0364

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 28, 2017

(Judge Nealon)

MEMORANDUM

Petitioner, Douglas B. Pugh, a state prisoner currently confined at the State Correctional Institution-Forest, Marienville, Pennsylvania ("SCI-Forest"), initiated the above-captioned action by filing a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). On February 24, 2015, the Court issued an Order granting Petitioner leave to withdraw his petition without prejudice to file an amended petition raising all grounds for relief from his conviction. (Doc. 3). On April 14, 2015, Petitioner filed an amended petition. (Doc. 7). On September 3, 2015, Respondent filed a response to the amended petition. (Doc. 31). On September 15, 2015, Petitioner filed a traverse. (Doc. 32). For the reasons that follow, the petition will be denied.

I. FACTUAL BACKGROUND

Petitioner "was arrested during a police search of 23A North Fifth Street, Stroudsburg, PA, on December 3, 2009." Commonwealth v. Pugh, No. 3134 EDA 2013, at p. 1 (Pa. Super. Ct. Aug. 19, 2014). During the search Petitioner was observed pushing "an air conditioning unit out of a [second] floor window." Pugh, No. 3134 EDA 2013, at p. 1 (alteration in original). He was also seen "throwing 'rocks' of crack cocaine from" the same window. Id. "Police entered the residence, and found [Petitioner] in a back bedroom with Ms. Aracelis Gonzalez." Id. "Crack cocaine, three [(3)] digital scales, approximately $1300 in cash, and numerous plastic bags, some with corners cut off, were found in the bedroom where" Petitioner was located by police. Id. at pp. 1-2.

After Petitioner was arrested, "[a] loaded .40 caliber handgun with the serial numbers removed was found inside a drawer of a night stand next to the bed." Id. "At trial, a Mr. Jonathon Moss (Moss) testified that the handgun was his, but that he had left the gun in another area of the apartment in October 2009." Id. at p. 2. "At that time, the magazine was not inserted in the gun and it was not loaded," and Moss had not returned since October 2009. Id.

On November 8, 2010, after a jury trial, Petitioner was convicted of possession with intent to deliver ("PWID") cocaine, criminal conspiracy, possession of cocaine, possession of drug paraphernalia, possession of a firearm with manufacturer's number obliterated, and endangering the welfare of a child. See Commonwealth v. Pugh, No. CP-45-CR-2090-2009; (Doc. 36-1). On January25, 2011, Petitioner was sentenced to an aggregate state prison sentence of not less than seventy-two (72) months to no more than one hundred and forty-four (144) months and to pay restitution. Pugh, No. CP-45-CR-2090-2009. On February 1, 2011, Petitioner filed a post-sentence motion with the trial court. Commonwealth v. Pugh, No. 1165 EDA 2011, at p. 3; (Doc. 31-19, p. 4). On March 28, 2011, the trial court denied Petitioner's post-sentence motion. Pugh, No. CP-45-CR-2090-2009; Pugh, No. 1165 EDA 2011, at p. 3; (Doc. 31-19, p. 4).

On April 27, 2011, a notice of appeal was filed with the trial court which stated that Petitioner had filed an appeal with the Pennsylvania Superior Court. Pugh, No. CP-45-CR-2090-2009; Pugh, No. 1165 EDA 2011, at p. 4; (Doc. 31-19, p. 5). On January 6, 2012, Petitioner's sentence was affirmed by the Pennsylvania Superior Court. Pugh, No. 1165 EDA 2011.

On December 3, 2012, Petitioner filed a timely petition for post-collateral relief with the sentencing court. Pugh, No. 3134 EDA 2013, at p. 2. On October 16, 2013, the Court of Common Pleas for Monroe County denied Petitioner's PCRA petition. Id. On November 8, 2013, Petitioner filed a notice of appeal with the PCRA court. Id. On August 19, 2014, the Pennsylvania Superior Court affirmed the PCRA court's denial of Petitioner's PCRA petition. See Id. at p. 9. On September 17, 2014, Petitioner appealed to the Pennsylvania Supreme Court.Pugh, No. 3134 EDA 2013; Petition for Allowance of Appeal, Commonwealth v. Pugh, No. 730 MAL 2014 (Pa. filed Sept. 17, 2014). On December 11, 2014, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal. Pugh, No. 730 MAL 2014.

On December 26, 2014, Petitioner filed a second PCRA petition in the Court of Common Pleas for Monroe County. Pugh, No. CP-45-CR-2090-2009. On February 24, 2015, Petitioner filed an amended second PCRA petition. Id. The Commonwealth of Pennsylvania filed its answer to the amended second PCRA petition on March 20, 2015. Id. On May 4, 2015, the Monroe County Court of Common Pleas dismissed Petitioner's amended second PCRA petition. Id. On June 4, 2015, Petitioner filed a notice of appeal of the May 4, 2015, order dismissing his amended second PCRA petition. (Doc. 16-6, p. 2).

On July 2, 2015, the Pennsylvania Superior Court issued an order directing Petitioner to show cause why his appeal should not be quashed as untimely filed on June 4, 2015, from the denial of the petition for post-conviction relief on May 4, 2015. Commonwealth v. Pugh, No. 1623 EDA 2015 (Pa. Super. Ct. filed July 17, 2015). On July 17, 2015, Petitioner filed a praecipe for discontinuance withthe Pennsylvania Superior Court.¹ Praecipe for Discontinuance, Pugh, No. 1623 EDA 2015 (Pa. Super. Ct. filed July 17, 2015).

II. STANDARD OF REVIEW

"A district court is authorized to '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.'" Parish v. Wetzel, 2015 U.S. Dist. LEXIS 68779, at *4 (M.D. Pa. May 28, 2015) (Conner, J.) (quoting 28 U.S.C. § 2254(a)). "A petition for writ of habeas corpus is the exclusive federal remedy for a state prisoner challenging the very fact or duration of his or her confinement." Id. (citing Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)).

"A petitioner filing for relief under the federal Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA'), must generally comply with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A), before a federal court can consider the merits of his habeas corpus petition." Id. (citing Baldwin v. Reese, 541 U.S. 27,29 (2004)). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c); see also Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (finding that before a federal court can adjudicate claims under habeas corpus, interests of comity and federalism dictate that the state courts must have the first opportunity to decide the petitioner's claims). The exhaustion requirement is rooted in considerations of comity; the statute is designed to protect the role of the state court in enforcement of federal law and to prevent disruption of state judicial proceedings. Rose, 455 U.S. at 515, 518-19; Castille v. Peoples, 489 U.S. 346, 349 (1989).

"State prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526, U.S. 838, 845 (1999); see Walker v. Vaughn, 53 F.3d 609, 615 (3d Cir. 1995) (quoting Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992) ("Just as the State must afford the petitioner a full and fair hearing on his federal claim, so must the petitioner afford the State a full and fair opportunity to address and resolve the claim on the merits.")). "A habeas petitioner retains the burden of showing that all of theclaims alleged have been 'fairly presented' to the state courts." Englert v. PA. State Attorney Gen., 2015 U.S. Dist. LEXIS 67546, at *15 (M.D. Pa. May 26, 2015) (Caputo, J.). "To 'fairly present' a claim, a petitioner must present its 'factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.'" Id. (quoting Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010)). "A federal habeas petitioner 'shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). An exception to the exhaustion rule exists if "there is an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." Id. at § 2254(b)(1)(B)(i), (ii).

"In addition, AEDPA endows a state tribunal's findings of fact with a 'presumption of correctness,' and this presumption extends 'to the factual determinations of state trial and appellate courts.'" Williams v. Beard, 637 F.3d 195, 204 (3d Cir. 2011) (quoting Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001)). "To overcome the presumption, a habeas petitioner must proffer clear and convincing evidence to show that a factual determination is 'objectively unreasonable in light of the evidence presented in the state-court proceeding.'" Id.(quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

Section 2254 of Title 28 in the United States Code "gives federal courts jurisdiction to entertain habeas corpus petitions from individuals who are 'in custody' pursuant to a state court judgment." Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003) (citing 28 U.S.C. § 2254(a)). "While the 'in custody' requirement is liberally construed for purposes of habeas corpus, for a federal court to have jurisdiction, a petitioner must be in custody under the conviction he is attacking at the time the habeas petition is filed." Id. (citing Maleng v. Cook, 490 U.S. 488, 490-92 (1989)). "The meaning of 'custody' has been broadened so that it is no longer limited in the § 2254(...