Habeas Corpus • Timeliness • Actual Innocence • Equitable Tolling

Scott v. Walsh, PICS Case No. 14-0291 (E.D. Pa. Feb. 7, 2014) Baylson, J. (10 pages).

Scott challenged his incarceration under a state court conviction for robbery, first degree murder, possession of an instrument of crime and conspiracy under 28 U.S.C.§2254, which led to a life sentence and a consecutive sentence of 52 ½ to 100 years in prison. He was appointed new counsel for his appeal and challenged the effective assistance of trial counsel. The Pennsylvania Superior Court affirmed the judgment and sentence which became final on Dec. 22, 1995. Scott subsequently filed multiple PCRA petitions from 1996 through 2006, which were withdrawn or dismissed. Scott filed this habeas corpus petition on March 4, 2013 asserting ineffective assistance of trial counsel for failing to call witnesses and failing to conduct DNA testing on a beer bottle and paper bag found at the crime scene and also alleging ineffective assistance of appellate counsel. Petition denied and dismissed.

Scott asserted ineffective assistance of trial counsel and ineffective assistance of appellate counsel for failing to raise on appeal whether the trial court erred in denying Scott’s motion to suppress eyewitness identification. He also asserted that the trial court improperly ordered destruction of the beer bottle and paper bag found at the crime scene. Additionally, Scott contended that the untimeliness of his habeas petition should be excused because it presents new evidence of actual innocence under Martinez v. Ryan, 132 S. Ct. 1309 (2012).

The magistrate judge found that the habeas petition was untimely and that equitable tolling did not apply because Scott did not diligently pursue his rights and he showed no extraordinary circumstances that prevented him from asserting his rights. Unlike the petitioner in Martinez, Scott was able to challenge his conviction based on ineffective assistance of trial counsel on direct review. Accordingly, Martinez had no bearing on the case.

Scott filed a PCRA petition on Dec. 16, 1996 and timely filed an appeal which was denied. Scott did not petition for appeal to the Supreme Court of Pennsylvania. Scott filed four more PCRA petitions but they were not timely and did not toll the statutory limitations period because they were not properly filed. Since Scott filed his federal habeas petition nearly 14 years after the limitations period expired, it was not timely.

Scott offered no basis for equitable tolling of the statute of limitations because the documents supporting his claim show that his claims were discoverable through due diligence well before the statute of limitations expired, he did not contend that he mistakenly filed the wrong form or that he was misled and he did not allege that he was prevented for filing his habeas petition.

Scott appended affidavits from three witnesses that he contends would have impeached testimony presented against him at trial. He argued ineffective assistance at trial because his counsel failed to call these witnesses. Even if the witnesses had thoroughly rebuked the testimony of a witness at trial, the petition did not show the requisite actual innocence under the McQuiggin standard. The evidence was not new evidence that was previously unavailable but was presented on direct appeal as well as collateral review in state court. Additionally, the challenged testimony was corroborated by two other witnesses at trial.

The destroyed beer bottle was not presented as inculpatory evidence at trial. Thus, even if the bottle were available and tested, the absence of Scott’s DNA on the bottle would not mean that no reasonable jury could have convicted him. Additionally, the destruction of the bottle and bag was authorized more than a year after the limitations period expired. Scott could have raised the issue if his petition had been timely and the issue did not show actual innocence.