Peake v. Johnson

          OPINION

          HON. BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE.

         Before this Court is the petition for a writ of habeas corpus of Raymond Franklin Peake, III, (“Petitioner”) brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On January 26, 2017, this Court, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, entered an order directing Petitioner to show cause why his petition should not be dismissed with prejudice as time barred. (ECF No 4.) On March 8, 2017, Petitioner filed a response to that order. (ECF No. 5.) On April 224, 2017, Petitioner filed a motion requesting that the Court take judicial notice of an alleged Brady violation and permit Petitioner to engage in discovery. (ECF No. 6.) For the reasons set forth below, Petitioner's petition is DISMISSED WITH PREJUDICE as time barred, Petitioner is DENIED a certificate of appealability (“COA”), and Petitioner's motion for judicial notice and permission to engage in discovery is DENIED.

         I. Background

         The Superior Court of Pennsylvania summarized the procedural history of this matter in its opinion affirming the dismissal of Petitioner's second Post Conviction Relief Act (PCRA) petition as time barred:

On August 16, 2012, [Petitioner] entered a negotiated plea of nolo contendere to second-degree murder and theft by unlawful taking related to the shooting death of Todd Getgen at a rifle range in Cumberland County. Pursuant to the plea negotiations, the trial court sentenced [Petitioner] to life imprisonment without the possibility of parole. [Petitioner] did not file a direct appeal. His judgment of sentence therefore became final on September 15, 2012. 42 Pa.C.S. § 9545(b)(3) [a conviction becomes final for PCRA purposes at the conclusion of direct review or the expiration of the time for seeking such review].

[Petitioner] timely filed his first PCRA Petition on August 19, 2013, raising several claims of ineffective assistance of counsel. The PCRA court denied the Petition as meritless on January 27, 2014, and this Court affirmed the denial on June 24, 2014[, in] Commonwealth v. [Peake], No. 2198 MDA 2013 (Pa. Super[.] June 24, 2014) (unpublished memorandum). [Petitioner] did not file a Petition for Allowance of Appeal in the Pennsylvania Supreme Court.

[Petitioner] filed the instant PCRA Petition on July 6, 2015. The PCRA court dismissed this second Petition as untimely on August 12, 2015.

Commonwealth v. Peake, No. 1581 MDA 2015, 2016 WL 2611039, at *1 (Pa. Super. May 5), petition for appeal denied, 2016 WL 6605097 (Pa. Nov. 8, 2016); (see also ECF No. 1 at 1-9). Following the dismissal of his second PCRA petition as time barred, Petitioner filed an appeal with the Superior Court of Pennsylvania, which affirmed the dismissal. Peake, 2016 WL 2611039 at *1. Petitioner then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on November 8, 2016. Peake, 2016 WL 6606097 at *1. On or about January 7, 2017, Petitioner filed his current habeas petition. (ECF No. 1 at 16-17.)

         On or about April 18, 2017, Petitioner filed in this Court a motion requesting that the Court take judicial notice of an alleged Brady violation and permit him to engage in discovery. (ECF No. 6.) In his motion, Petitioner contends he was subjected to a polygraph at his own request prior to his nolo contendere plea in his criminal case. (Id. at 2-3.) Petitioner contends the polygraph showed he was truthful when he denied committing the murder, but that the police who conducted the test told him “[I]t does not matter[;] we still have the [murder] weapon to be tested.” (Id. at 3.) Petitioner contends the District Attorney in his criminal case acted improperly in charging him based on his possession of the murder weapon and various other forms of evidence, because the polygraph suggested he did not commit the murder. (Id.)

         In his motion, Plaintiff argues the “result” of his polygraph test was not turned over to him prior to his plea, and he therefore was denied exculpatory evidence, despite apparently having been told of the result at the time of the test by the investigating officers. (Id.; ECF No. 6-1.) He states he has sought the results of his polygraph test but has been unable to discover any such document.

         Petitioner's belief that such a document exists appears to come from a letter he sent to the Cumberland County Clerk of Court requesting documents from his criminal case some time prior to October 17, 2016. (See ECF No. 6-2 at 1.), . (Id.) In that letter, the Clerk of Court for Cumberland County, Pennsylvania sent Petitioner copies of his plea colloquy and rights form, but responded to Petitioner's other requests as follows: “However, per your request we do have the following items in your Criminal Case file[: a] copy of your confession, results of a polygraph, a ballistic test, or a copy of a FBI report.” (Id.) When Petitioner requested these other documents again, the Clerk informed Petitioner there had been a typo in the first letter. (Id. at 2-3.) The Clerk informed Petitioner the first letter should have indicated the Clerk did “NOT have such items.” (Id.) Petitioner appears to argue the first letter's typo amounts to newly discovered evidence of a report that was not turned over to him, which he believes constitutes a Brady violation. (Id. at 1-3.) However, this point is contradicted by the second letter. (Id. at 3.)

         II. Legal Standard

         Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim presented in his petition based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, ___ U.S. ___, ___, 132 S.Ct. 2148, 2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73 (2010).

         Where a claim has been adjudicated on the merits by the state courts, the district court shall not grant an application for a writ of ...