Richburg v. Garman

• Decision Date: 27 October 2022
• Docket Number: Civil Action 19-459,Re ECF 3
• Parties: RICKIE ROBE RICHBURG, Petitioner, v. SUPERINTENDENT MARK GARMAN and STEPHEN A. ZAPPALA, JR., District Attorney for Allegheny County, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

RICKIE ROBE RICHBURG, Petitioner, v. SUPERINTENDENT MARK GARMAN and STEPHEN A. ZAPPALA, JR., District Attorney for Allegheny County, Respondents.

Civil Action No. 19-459

Re ECF No. 3

United States District Court, W.D. Pennsylvania

October 27, 2022

Hon William S. Stickman, United States District Judge

REPORT AND RECOMMENDATION

MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE

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”), ECF No. 3, be denied. It is further recommended that a certificate of appealability be denied.

II. REPORT

Rickie Robe Richburg (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Rockview (“SCI-Rockview”) in Bellefonte, Pennsylvania. In the Petition, he seeks federal habeas relief from his 2010 convictions in the Court of Common Pleas of Allegheny County, Pennsylvania, at Case Nos. CP-02-CR-12136-2009, 12137-2009, 12138-2009, and 12139-2009. Id. at 1.

A. Relevant Procedural History.

On April 19, 2012, Petitioner pleaded guilty^[1] to the following charges in the above cases:

• four counts of rape, in violation of 18 Pa. C.S.A. § 3121(a)(1);

• four counts of involuntary deviate sexual intercourse, in violation of 18 Pa. C.S.A. §§ 3123(a)(1) and (a)(3);

• three counts of robbery, in violation of 18 Pa. C.S.A. §§ 3701(A)(1)(i) and (iii);

• three counts of recklessly endangering another person, in violation of 18 Pa. C.S.A. § 2705;

• three counts of sexual assault, in violation of 18 Pa. C.S.A. § 3124.1;

• three counts of terroristic threats, in violation of 18 Pa. C.S.A. § 2706(a)(1);

• two counts of unlawful restraint, in violation of 18 Pa. C.S.A. § 2902(a)(1);

• two counts of aggravated indecent assault, in violation of 18 Pa. C.S.A. §§ 3125(a)(1) and (a)(5);

• two counts of indecent assault, in violation of 18 Pa. C.S.A. § 3126(a)(1);

• one count of kidnapping, in violation of 18 Pa. C.S.A. § 2901(a)(1); and

• one count of stalking, in violation of 18 Pa. C.SA. § 2709.1(a)(1).

ECF Nos. 11-1 at 3-4; 11-2 at 3-4; 11-3 at 4-5; and 11-4 at 3-4.

On June 30, 2010, Petitioner was sentenced to an aggregate term of confinement of 20 to 40 years, followed by 10 years of probation. Petitioner was given credit for 355 days served. ECF Nos. 11-9 - 11-12. Respondents concede that, in light of the Supreme Court's decision in Alleyne v. United States, 570 U.S. 99, 103 (2013), the trial court imposed mandatory minimum sentences that Petitioner would not face if he were sentenced today. ECF No. 11 at 11-12.

Petitioner did not file post-trial motions or a direct appeal of his conviction and sentence. As a result, they became final on July 30,2010 - 30 days after sentence was imposed. Pa. R.A.P. 903(c)(3).

Petitioner filed a Post Conviction Relief Act Petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §9541, et seq., on April 3,2016? ECF No. 11-13 at 10. Counsel was appointed, who subsequently filed a no-merit letter and sought leave to withdraw June 16,2016. ECF No. 11-14 at 1 and 5. On June 6, 2016, the PCRA trial court issued an order indicating its intent to grant counsel's motion to withdraw, and to dismiss the PCRA petition. ECF No. 11-15 at 1. The PCRA trial court followed through and dismissed the PCRA petition, June 29, 2016. ECF No. 11-16 at 1 and 9. There is no indication whether the PCRA Trial Court granted counsel leave to withdraw.

Petitioner filed a pro se response to the no-merit letter, which was dated June 24, but received by the PCRA trial court on June 30, 2016. ECF No. 11-17 at 1 and 9. There is no indication that the PCRA trial court addressed Petitioner's objections.^[2]

Petitioner's notice of appeal to the Pennsylvania Superior Court was filed on July 26,2016. ECF No. 11-18 at 2. This was followed by a pro se brief, in which he raised three grounds for relief. ECF No. 11-20 at 2. The Superior Court denied reliefon October 27,2017. ECF No. 11-22 at 1.

Petitioner submitted a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on November 27, 2017. ECF No. 11-23 at 1. The Supreme Court denied allocator on May 8, 2018. ECF 11-26 at 1.

Pursuant to the prisoner mailbox rule, the instant federal habeas Petition is deemed filed on April 12, 2019. ECF No. 3 at 15. See Bums v. Morton, 134 F.3d 109,113 (3d Cir. 1998) (“we hold that a pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court.”). Petitioner raises the following grounds for federal habeas relief.

Ground 1: Pennsylvania courts erred in misapprehending the retrospective application in Commonwealth v Hopkins when it's paradigm Alleyne v . United States created a substantive rule which requires retroactive effect.

Ground 2: Pennsylvania erred in not correcting Mr. Richburg's patently unconstitutional / illegal sentence which it has the ability to correct through the Court's inherent power.

Ground 3: Pennsylvania courts violated Mr. Richburg's due process rights by denying his PCRA petition without a hearing when it was filed within sixty (60) days of the Hopkins decision.

ECF No 3 at 5, 7, and 8.

Respondents answered the Petition on June 5,2019. ECF No. 11. Petitioner did not submit a traverse pursuant to LCvR 2254.E.2. The Petition is ripe for consideration.

B. The AEDPA Statute of Limitations.

The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed within the applicable statute of limitations. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the “AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, which generally established a strict one-year statute of limitations for the filing habeas petitions pursuant to Section 2254. The applicable portion of the statute is 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;

(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.

(2) The time during which a properly filed application for State postconviction 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).

The United States Court of Appeals for the Third Circuit has held that the statute of limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004), cert, denied sub nom. Fielder v, Lavan, 543 U.S. 1067 (2005). Thus, in analyzing whether a petition for writ habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger” date for the individual claims raised in the petition. Typically, this is the date on which the petitioner's direct review concluded and the judgment became “final” for purposes of triggering the one-year period under Section 2244(d)(1)(A). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to Section 2244(d)(2). Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. See, e.g., Munchinski v. Wilson, 807 F.Supp.2d 242, 263 (W.D. Pa. 2011), affd, 694 F.3d 308 (3d Cir. 2012) (citing Nara v. Frank, No 99-5, 2004 WL 825858, at *3 (W.D. Pa., Mar. 10, 2004)).

1. The Petition is untimely.

In their Answer, Respondents failed to address - or even consider - whether any of Petitioner's claims might have different trigger dates under Section 2244. Instead, it appears that Respondents made a default presumption that all of Petitioner's claims arose together. See ECF No. 11 at 6. A careful review of the Petition reveals that this is not the case.

Both Grounds One and Two attack Petitioner's sentence - either through the retroactive application of Alleyne, or the state court's inherent power. ECF No. 3 at 5 and 7. But Alleyne has not been held to apply retroactively to cases on collateral review. See United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014) (“[T]he Supreme Court has not chosen to apply Alleyne's new rule retroactively to cases on collateral review”); United States v. Winkleman, 746 F.3d 134, 136 (3d Cir. 2014) (“Alleyne cannot be applied retroactively to cases on collateral review.”). Further, neither Ground One nor Ground Two otherwise satisfies Section 2244(d)(1)(B)-(D). Accordingly, Grounds One and Two trigger under Section 2244(d)(1)(A) - the date on which Petitioner's conviction became final. As stated above, that date is July 30, 2010.

Additionally no properly-filed PCRA petition was pending during the period of time between Petitioner's conviction becoming...