Risjan v. Wetzel

• Decision Date: 15 July 2019
• Docket Number: CIVIL ACTION NO. 3:15-CV-268
• Parties: SHANE DAVID RISJAN, Petitioner v. JOHN WETZEL, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

SHANE DAVID RISJAN, Petitioner v. JOHN WETZEL, et al., Respondents.

CIVIL ACTION NO. 3:15-CV-268

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 15, 2019

(JUDGE MARIANI)

(Magistrate Judge Mehalchick)

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is a Report and Recommendation ("R&R") (Doc. 29) from Magistrate Judge Karoline Mehalchick, in which she recommends Petitioner's 28 U.S.C. § 2254 petition (Doc. 1) be dismissed with prejudice. (Doc. 29 at 22.) The primary issue under consideration is whether Petitioner is entitled to equitable tolling of the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). If Petitioner's habeas action is deemed timely filed, the Court must then determine whether he is entitled to substantive relief. For the reasons discussed below, the Court concludes that equitable tolling is appropriately. The Court further concludes that Petitioner's 28 U.S.C. § 2254 Petition (Doc. 1) is properly granted on the limited terms set out herein.

II. FACTUAL BACKGROUND

Other than the underlying incident summary and references to family correspondence or declarations, the factual background set out below is derived from the Declaration of Petitioner, Shane David Risjan (Doc. 18-1 at 2-7) and exhibits attached thereto (id. at 8-25), Respondent's Answer to Petition for Writ of Habeas Corpus (Doc. 22), Respondent's Brief in Opposition to Petition for Writ of Habeas Corpus (Doc. 22-1), and attached exhibits (Doc. 22-2 through 22-11).

On March 11, 2009, Petitioner was convicted of involuntary deviate sexual intercourse, indecent assault, indecent exposure, and corruption of minors after a three-day jury trial in the Dauphin County Court of Common Pleas. (Doc. 22-1 at 2; Doc. 22-2 at 3.) Petitioner's daughter, who was nine-years-old at the time, was the victim of these crimes. Petitioner alleges that his conviction was based on his own coerced confession and the testimony of one witness. (Doc. 43 at 4-5.)

The incident giving rise to his arrest and conviction occurred on January 8, 2008. (Doc. 22-2 at 2.) Petitioner, his seven children, and his grandparents had traveled from Waterford, Pennsylvania, to Hershey, Pennsylvania, to attend the Pennsylvania Farm Show and arrived at the Comfort Inn in Hershey, Pennsylvania, on the evening of January 8^th. (Doc. 43-1, Declaration of S. Risjan.) The family was at the hotel pool with Petitioner and several of his children in the water when a woman who was attending a conference at the hotel, Stephanie Haynes, observed the pool area through hallway windows. (Doc. 43 at 5 (citing N.T. at 81, 96-97, 205).)¹ Ms. Haynes testified that she saw a man in the pool with a young girl on his lap, and "it appeared . . . she was extremely uncomfortable." (Id.) According to her testimony, the girl tried to struggle away from Petitioner as he was pulling her through the pool with his hands on her waist. (Id. (citing N.T. at 103-04).) Ms. Haynes reported the activity, which she described as Petitioner having his hands around the girl, to the front desk attendant, Kerri Frolich. (Id. at 6 (citing N.T. at 88-89, 107-08).) She said she reported the conduct because she did not think it was appropriate physical contact between a grown man and a small child. (Id. (citing N.T. at 104).) Ms. Frolich alerted local authorities. (Id. at 7 (citing N.T. at 138-39, 141).) Pursuant to a subsequent radio dispatch which alerted to both a rape in progress and allegations of oral sexual conduct, a police officer and detective arrived at the scene. (Id. (citing N.T. at 186, 194, 197).) After speaking with Ms. Haynes, the detective, Gregory Day, asked Petitioner to accompany him to a conference room where Day questioned Petitioner. (Id. (citing N.T. at 165).) This is where Petitioner asserts that his confession, which followed denials of inappropriate conduct and consisted primarily of one-word answers to questions posed by Day, was coerced by threats that his daughter would be taken away. (Id. at 9 (citing N.T. at 306, 378, 383-84, 389, 391-92, 412-13).) Petitioner's daughter did not testify at the trial and has continuously denied that any inappropriate conduct occurred. (See, e.g., Doc. 9-1 at 1, Doc. 44 at 8-10.)

As noted above, Petitioner was convicted on March 9, 2009. See supra p. 2. He was sentenced on June 29, 2009 by the Honorable Richard A. Lewis to 10-20 years in a state correctional facility for the involuntary deviate sexual intercourse count, 9-24 months concurrent for the indecent assault charge, 3-23 months concurrent for the indecent exposure charge, and 9-24 months for the corruption of minors charge. (Doc. 22-1 at 2.) He was represented by J. Michael Sheldon, Esquire, at trial. (Id.) No post-sentence motions were filed, and no direct appeal was filed. (Id.)

The roots of this habeas petition are based in the fact that Sheldon did not file post-trial motions or an appeal whereas Petitioner and his grandmother, Clara Risjan, (who was with him at the time of the January 2008 incident, testified at the trial, and communicated with Sheldon about the case) believed that Sheldon continued to represent Petitioner post-sentencing and had filed an appeal. Testimony later adduced at hearings related to Petitioner's first Post-Conviction Relief Act Petition ("PCRA I") filed on May 7, 2012, sheds light on the origin of Sheldon's alleged belief that he was not expected to file an appeal and Petitioner's belief his attorney would file and had filed a timely appeal.

The first PCRA Hearing was held by Judge Lewis on April 19, 2013. (Doc. 22-7 at 8-34.) Petitioner and Sheldon testified at the hearing. (Id. at 8.) Anthony A. Logue and James A. Pitonyak appeared for Petitioner. (Id.) Jason E. McMurry appeared for the Commonwealth. (Id.)

Petitioner testified that he told Sheldon he wanted to appeal the verdict when Sheldon visited him at the Dauphin County Prison at some time after the verdict and before June 2009. (Doc. 22-7 at 13 (Tr. at 11:23-12:13).) Petitioner also instructed his grandmother to let Sheldon know he wanted to appeal the verdict. (Id. (Tr. at 14-17).) After the sentencing on June 29, 2009, Petitioner did not get to see Sheldon but testified that he told his grandmother to contact Sheldon and tell him to start the appeal and she reported to him that he had done so. (Id. (Tr. at 13:5-14).) Petitioner further testified that, based on this information, he believed Sheldon was handling his appeal. (Id. (Tr. at 13:15-17).) The following exchange then occurred between Logue and Petitioner:

[Logue]"After you told your grandmother to have Attorney Sheldon file your appeal, did you have any further communication with him either in person, by mail, by telephone, any contact whatsoever?"

[Petitioner] After the sentencing?

[Logue] Yes

[Petitioner] No.

(Id. (Tr. 13:18-25).)

Sheldon testified that he met with the family after the verdict and before sentencing but he did not remember meeting with Petitioner. (Doc. 22-7 at 14 (Tr. at 18:7-13).) Sheldon described his contact with the family after the verdict as follows:

After the verdict I had been so emotionally involved in the case, I went out into the lobby outside the courtroom and I broke down in tears because I felt badly for Mr. Risjan. I felt badly for the sentence that I knew was coming and I told the family at that point in time that I didn't feel capable, if they were planning to appeal it, to handle any appeal, that they needed a new fresh set of eyes.

(Id. (Tr. 18:16-24).) McMurry then stated: "So safe to say, you informed them the day he was convicted that you would not pursue an appeal in this matter on behalf of Mr. Risjan?" (Id. (Tr. 18:25-19:2).) Sheldon responded: "Absolutely. I didn't feel confident to do so. I was emotionally just broken down." (Id. (Tr. at 19:3-4).)

Sheldon did not recall visiting with Petitioner at the prison between the verdict and sentencing but said "I am not saying that I didn't" (id. at 16 (Tr. at 24:2-3)), ""I may or may not have been there" (id. (Tr. at 25:12-13)). He did not recall having a conversation with Petitioner during this time about the appeal:

I don't recall that conversation because I made it clear to the family and if I did meet with Mr. Risjan, I would have made it clear to him that I didn't feel capable of handling the appeal and send him to another attorney.

But I was doing primary conversations with his grandmother. They were the ones talking with me mostly. Those were the people that I probably talked with. I do not remember talking to Mr. Risjan between the date of verdict and date of sentencing.

(Doc. 22-7 at 16 (Tr. at 25:20-26:5).)

Sheldon testified that he did not recall having any conversations with Petitioner or his family after the sentence. (Id. (Tr. at 19:17-19).) When asked about receiving correspondence, he stated that Petitioner and his family would send him things "periodically throughout the case, . . . bible quotes." (Id. (Tr. at 19:23-25).) He clarified that the time frame he was referring to was before the trial. (Id. at 15 (Tr. at 20:3-4).) When asked if he had ever given the family the impression that he would handle the appeal, Sheldon responded as follows:

Absolutely at no time did I ever tell them that I would handle the appeal, did I give them that impression. If anything, I specifically told the family on the date of the verdict that I would not be handling the appeal and I recommended another attorney and told them that I would take the file to that attorney personally.

(Doc. 22-7 at 15 (Tr. at 21:1-7).) He identified the other attorney as Bill Costopoulos and added "I made it very clear to Miss Risjan on the day of the verdict that I would not be handling an appeal. That's it." (Id. (Tr. at 21:9, 22:1-3).)

On cross-examination by Pitonyak, Sheldon confirmed that he never formally withdrew his representation of Petitioner and never filed a motion to do so. (Id. (Tr....