Stone v. Wetzel, CIVIL NO. 1:15-CV-1734

• Decision Date: 07 November 2018
• Docket Number: CIVIL NO. 1:15-CV-1734
• Parties: DERIACE STONE, Petitioner v. JOHN WETZEL, et al., Respondents
• Court: U.S. District Court — Middle District of Pennsylvania

DERIACE STONE, Petitioner v. JOHN WETZEL, et al., Respondents

CIVIL NO. 1:15-CV-1734

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

November 7, 2018

(Chief Judge Conner)

MEMORANDUM

Petitioner Deriace Stone ("Stone") filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court of Common Pleas of York County, Pennsylvania.¹ (Doc. 1). For the reasons discussed below, the court will deny the petition.

I. Factual Background

The factual background of this case has been aptly summarized by the Pennsylvania Superior Court as follows:

On November 6, 2008, a jury found [Stone] guilty of possession of a controlled substance and other drug-related crimes as well as a weapons offense. On December 31, 2008, [Stone] was sentenced to an aggregate term of 5½ to 11 years' imprisonment.

[Stone] was apprehended after police searched trash bags that abutted [Stone's] property and found a plastic sandwich bag containing marijuana particles. Police then obtained a search warrant for[Stone's] residence by presenting an affidavit of probable cause that read as follows:

This affiant is an officer with the Spring Garden Township Police Department and a member of the York County Drug Task Force.

Based on the following information I believe there is Marijuana present at 719 State St.

Specifically, I have reveived [sic] information from concerned persons that illegal drugs are being used and sold at 719 State St.

On August 14, 2007 I picked up trash from the north side of the residence. The trash was located in an area where trash is normally located for 719 State St. I have picked up trash from 719 State St. at this same location on four separate occasions in the past. During normal routine patrol I observe trash to be normally placed at this same location. Further, there are no houses located on the north, west or east sides of 719 State St. There is only one home attached to the south side of the residence. The trash was located on the north side of the residence. 719 State St. is bordered by three roadways located on the north, west and east sides of the residence.

The trash was sitting in an area between the roadway and the north side of the residence which is appx. two feet wide.

The following items were recovered from the trash, loose cigar tobacco

two Dutch Masters cigar labels four plastic sandwich type bags

one plastic sandwich type bag containing green vegetable matter particles

This green vegetable matter field tested positive as marijuana.

Affidavit of Probable Cause, 8/14/07 at 2.

As a result of the search of the house, police found a large quantity of marijuana, drug paraphernalia, and two firearms. [Stone] filed an omnibus pre-trial motion in which he sought suppression of the evidence. [Stone] argued that the house search yielded "fruit of the poisonous tree" because it was based upon an illegal search of [Stone's] trash bags. The bags were not placed where they would be for pick-up by the trash collector but were alongside [Stone's] property abutting an alley. [Stone] argued that police had to enter his property to access the trash bags and that, therefore, they could not be considered as abandoned property.

. . .

[Stone's] suppression motion was denied, and as noted, he was subsequently convicted and sentenced.

Commonwealth v. Stone, 2014 WL 10982116, *1-2 (Pa. Super. 2014).

II. State Court Proceedings²

In November 2007, a criminal information was filed in the Court of Common Pleas of York County charging Stone with possession with intent to deliver, possession of drug paraphernalia, criminal conspiracy to commit possession with intent to deliver, person not to possess a firearm, and possession of marijuana. (Doc. 1; https://ujsportal.pacourts.us, electronic docket number CP-67-CR-0006522-2007). On November 6, 2008, a jury found Stone guilty of the crimes. (Id.) On December 31, 2008, Stone was sentenced to an aggregate term of 5½ to 11 years' imprisonment. (Id.)

Stone filed a timely direct appeal. On March 17, 2011, the Pennsylvania Superior Court affirmed the judgment of sentence, and on March 1, 2012, the Pennsylvania Supreme Court denied appeal. Commonwealth v. Stone, 26 A.3d 1196 (Pa. Super. 2011) appeal denied, 615 Pa. 766, 40 A.3d 1236 (2012).

On May 9, 2012, Stone filed a timely pro se petition for post-conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46, arguing, inter alia, that appellate counsel was ineffective in failing to properly pursue a suppression claim and that he was due certain credit for time served. (Doc. 31-4 at 6-29, PCRA Petition). Counsel was appointed and a hearing was held on September 26, 2012. (Doc. 31-4 at 38-107, Transcript of PCRA Hearing). On October 24, 2012, the PCRA court entered an opinion and order granting Stone relief as to credit for time-served, but denied relief as to all other issues, including appellate counsel's ineffectiveness in pursuing his suppression claim. (Doc. 31-4 at 133-43, PCRA Opinion and Order dated October 24, 2012). Stone filed a timely notice of appeal to the Pennsylvania Superior Court raising the sole issue of appellate counsel's ineffectiveness in presenting the suppression claim on appeal. (Doc. 31-4 at 147, Notice of Appeal; see also https://ujsportal.pacourts.us, electronic docket number 2078 MDA 2012). On February 12, 2014, the Pennsylvania Superior Court affirmed the PCRA court's decision denying the petition. (Doc. 31-5 at 60-70, Pennsylvania Superior Court Order, No. 2078 MDA 2012; Commonwealth v. Stone, 2014 WL 10982116 (Pa. Super. 2014)). Stone filed a petition for allowance of appeal with the Pennsylvania Supreme Court. (Doc. 31-5 at 75-90, Petition for Allocatur, No. 154 MAL 2014). On August 29, 2014, the Pennsylvania Supreme Court deniedthe petition for allowance of appeal. (Doc. 31-5 at 101, Pennsylvania Supreme Court Order Denying Allocatur, No. 154 MAL 2014).

On April 14, 2015, Stone filed a second PCRA petition. (Doc. 31-5 at 106-118, Second PCRA Petition). On April 17, 2015, the PCRA court provided Stone with notice of its intent to dismiss the petition because, inter alia, it was not timely filed. (Doc. 31-5 at 119-20, Rule 907 Notice). On July 13, 2015, the PCRA court dismissed the second PCRA petition as untimely. (Doc. 31-5 at 164-68, Opinion in Support of Order denying PCRA Petition). Stone did not appeal the dismissal of his second PCRA petition.

On July 2, 2015, Stone filed a third PCRA petition. (Doc. 31-5 at 122-60, Third PCRA Petition). On July 13, 2015, the PCRA court provided Stone with notice of its intent to dismiss the petition based, in part, on its untimeliness. (Doc. 31-5 at 161-63, Rule 907 Notice). On August 14, 2015, the PCRA court dismissed the third PCRA petition as untimely. (Doc. 31-5 at 169-70, Order denying PCRA Petition). Stone did not appeal the dismissal of his third PCRA petition.

Stone filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).

III. Standards of Review

The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S.475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.

A. Exhaustion

Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

A state prisoner exhausts state remedies by giving 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, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).³ Respect for the state court system requires that the petitioner demonstrate that the claims in question have been"fairly presented to the state courts." Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). 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." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). While the petitioner need not cite "book and verse" of the federal Constitution, Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), he must "give the State 'the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" before presenting those claims here, Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard, 404 U.S. at 275, 92 S.Ct. 509).

B. Merits Standard

Once a court has determined that the exhaustion requirement is met and, therefore,...