Scott v. Zappala

• Decision Date: 19 October 2021
• Docket Number: Civil Action 2:19-cv-551
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: THOMAS A. SCOTT, Petitioner, v. STEPHEN A. ZAPPALA, JR., MICHAEL CLARK and JOSH SHAPIRO, Respondents.

THOMAS A. SCOTT, Petitioner, v. STEPHEN A. ZAPPALA, JR., MICHAEL CLARK and JOSH SHAPIRO, Respondents.

Civil Action No. 2:19-cv-551

United States District Court, W.D. Pennsylvania

October 19, 2021

MEMORANDUM

Patricia L. Dodge United States Magistrate Judge

Pending before the Court^[1] is the Petition for a Writ of Habeas Corpus (ECF 3) filed by state prisoner Thomas A. Scott (“Petitioner”) under 28 U.S.C. § 2254. For the reasons set forth below, the Court will deny the Petition because all of his claims are time-barred, and will deny a certificate of appealability as to each claim.

I. Relevant Background^[2]

In May 2011, the Commonwealth charged Petitioner with two counts of Criminal Attempted Homicide, 18 Pa. Cons. Stat. § 901; two counts of Assault of Law Enforcement Officer, 18 Pa Cons. Stat. § 2702.1 (Counts 3 and 4); two counts of Aggravated Assault, 18 Pa. Cons. Stat. § 2702; and two counts of Reckless Endangerment, 18 Pa. Cons. Stat. § 2705. These charges arose out of an incident that occurred in the early morning hours of March 9, 2011 between Petitioner and Sergeant Jason Snyder and Detective Mark Goob, both of whom were assigned to the narcotics and vice section of the City of Pittsburgh Police Department.

Petitioner retained Attorney William Jones (“trial counsel”) to represent him. His jury trial was held on August 24 through August 29, 2011.

In its Appellate Rule 1925(a) opinion issued after Petitioner filed a direct appeal, the trial court summarized the evidence introduced by the Commonwealth as follows:

City of Pittsburgh Police Sergeant Jason Snyder, a narcotics detective, testified that on March 9, 2011, he was on patrol in a high crime area of Pittsburgh while in an unmarked police vehicle with Detective Jedidiah Pollock. Detectives Ed Fallert and Mark Goob were trailing him in a second unmarked vehicle. Sergeant Snyder heard multiple gunshots to his right. He turned and saw a male in dark clothing in an alley firing a handgun. Sergeant Snyder, who testified he was wearing his badge around his neck, exited his vehicle and loudly declared, “Pittsburgh Police, drop your weapon.” (TT 50-53.) The assailant, identified by the Sergeant as [Petitioner], immediately turned and fired more than eight rounds at the Sergeant. Sergeant Snyder returned fire and hit [Petitioner], causing him to fall face forward. (TT 53, 55.)

Detective Mark Goob also testified that he observed [Petitioner] shoot at Sergeant Snyder. (TT 150.) He heard the shots and saw the muzzle flash. (TT 150-151.) After [Petitioner] was hit, Detective Goob approached him to determine if [he] remained a threat and to render medical aid if possible. (TT 152.) During his cautious approach, Detective Goob repeatedly instructed [Petitioner] to drop the weapon which the Detective could see in [Petitioner's] hand. Instead, while Detective Goob was approximately five yards away, [Petitioner] turned, pointed his gun at Detective Goob and started to fire again. (TT 155.) Detective Goob heard the gun discharge and returned fire, hitting [Petitioner] in the leg. The Officer saw the slide of [Petitioner's] gun lock back, an indication that [Petitioner] was out of bullets. [Petitioner] then said words indicating that he quit or was done and dropped his gun. (TT 156-157.)

Detective Edward Fallert testified similarly to having observed [Petitioner] turn and fire at Sergeant Snyder. (TT 349.) Once Sergeant Snyder shot [Petitioner] to the ground, Detective Fallert heard Detective Goob repeatedly shout to [Petitioner] to drop the gun. (TT 352.) Instead of complying with the Officer's demand, Detective Fallert observed [Petitioner] roll with gun in hand toward Detective Goob. After getting shot by Detective Goob, Detective Fallert saw [Petitioner] drop the gun and surrender, the gun in slide-lock, open chamber position. (TT 352.) Detective Fallert also noted an odor of alcohol emanating from [Petitioner]. (TT 354.)

Detective Jeffrey Palmer recovered the Glock pistol, .40 caliber belonging to [Petitioner] and testified that the gun was recovered with the slide in the locked position. (TT 418-419.)

Detective Scott Evans arrived after the shooting and recovered shell casings at the scene. Eight of the casings were brass in color, which would not have been consistent with police-issued ammunition. (TT 247.) Other casings recovered at the scene matched in caliber, make and color with standard issue police ‘duty ammo.' Ibid. Detective Evans concluded that some casings were fired by police-issued weapons and others were not. Upon further research, Detective Evans discovered that the gun found at the scene was owned by [Petitioner] who did not have a license to carry a firearm on his person. (TT 270-271.)

(Resp's Ex. 4, ECF 20-1 at 30-31.)

Petitioner testified at the trial that he finished work between 10:00 and 11:00 p.m. on March 8, 2011. He then drove his co-worker, Will Harris, to the home of Harris' fiancé, located on Bennett Street in the Homewood neighborhood of Pittsburgh. Petitioner, Harris, his fiancé and another individual played a drinking game for approximately one and a half to two hours. (Trial Tr. at 517-19, 602.)

Petitioner left the house around 1:00 a.m. (Id. at 520, 606.) He testified that, when his vehicle would not start, he decided to walk to a nearby alley and test-fire the handgun he had recently purchased to see if it was working properly. (Id. at 607-10.) Petitioner stated that he walked across Bennett Street and that, when he reached Felicia Way from an alley, he fired his gun approximately four times in the direction of nearby dirt mounds. (Id. at 610-13.)

Petitioner further testified that he did not point his weapon and discharge it in the direction of Sergeant Snyder or anyone else. (Id. at 616.) He stated that after he fired his gun at the dirt mounds and was walking back to his vehicle, he felt his right leg give out and then he fell to the ground on his right side. (Id. at 614.) Petitioner stated that he did not understand why he had fallen and he tried to pick up his head to look around, and in so doing raised his right arm. (Id. at 615.)

Detective George Satler interviewed Petitioner on March 9, 2011 after he had been transported to the hospital following the incident. Detective Satler testified that Petitioner told him that when he decided to test-fire his gun it was fully loaded with a clip that contained as least fifteen rounds. (Id. at 521-22.) Petitioner also told Detective Satler that he shot in the direction of the dirt mounds at least three times. (Id. at 522.) Detective Statler further testified that, although Petitioner did not give him a definitive answer, he acknowledged during the interview that it was possible that the police had identified themselves to him prior to shooting him and also that he may have fired his weapon after he had been shot and was on the ground. (Id. at 522-24.)

On August 29, 2011, the jury acquitted Petitioner of the two counts of Criminal Attempted Homicide but found him guilty on all other counts. That same date, the trial court sentenced Petitioner to a total aggregate sentence of 40 to 80 years of imprisonment as follows: Count 3 (Assault of Law Enforcement Officer-Sergeant Snyder) a term of 20 to 40 years; Count 4 (Assault of Law Enforcement Officer-Detective Goob) a term of 20 to 40 years, to run consecutive to Count 3; Count 5 (Aggravated Assault) at term of 5 to 10 years, to run concurrent with Count 3; Count 6 (Aggravated Assault), a term of 5 to 10 years, to run concurrent with Count 4. The trial court imposed no further penalty at Counts 7 or 8 (Reckless Endangerment).

At the conclusion of Petitioner's trial and sentencing on August 29, 2011, the trial court permitted trial counsel to withdraw as Petitioner's attorney. (Trial Tr. at 759.) The trial court issued an order appointing the Law Office of the Office of Allegheny Public Defender (“post-sentence/direct appeal counsel”) to represent Petitioner on September 2, 2011, ^[3] although it did not file that order on its docket until September 7, 2011. (See Resp's Ex. 6, ECF 20-2 at 1-8, Commonwealth v. Scott, No. 1582 WDA 2011, slip op. at 7 (Pa. Super. Ct. June 18, 2013) (“Scott I”)).

Petitioner did not file post-sentence motions, which were due by September 8, 2011, or a notice of appeal, which was due by September 28, 2011. Petitioner, through counsel, subsequently filed an unopposed collateral petition requesting that his direct appeal rights be reinstated nunc pro tunc. (Resp's Ex. 2, ECF at 18-21). In this petition, it was explained that counsel missed the deadline to file a direct appeal by one day due to a legal secretary's calendaring error, which incorrectly recorded the date by which the notice of direct appeal was due. (Resp's Ex. 2, ECF at 18-21.)

The trial court granted that petition and reinstated Petitioner's right to file a direct appeal nunc pro tunc. Petitioner, through counsel, then filed a direct appeal with the Superior Court of Pennsylvania, in which he raised the following two claims:

1. “The evidence presented is insufficient to establish that [Petitioner] fired any shots in the direction of the police officers. The testimony provided only the location of the shell casings, there were no slugs recovered from any spot around the officers, there were no injury to the officers or any testimony that they saw or heard projectiles traveling in their direction. The evidence agrees only that [Petitioner] was firing his weapon, but, even from his own admission, [he] was firing into a dirt mound and not at the officers.” (Resp's Ex. 2, ECF 20-1 at 56; see also Id. at 62-70); and,

2. The trial court effectively denied Petitioner's right to counsel for post-sentence motions because the order appointing the Office of

...