Champney v. Secretary Pennsylvania Department of Corrections , 469 F. App'x 113 ( 2012 )


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  •                                                                 NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 10-2745
    _____________
    RONALD GRANT CHAMPNEY,
    Appellant
    v.
    *SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
    LOUIS S. FOLINO, Superintendent of the State Correctional Institution at Greene;
    SCHUYLKILL COUNTY DISTRICT ATTORNEY; GERALD J. PAPPERT
    *(Pursuant to Rule 43(c), Fed. R. App. P.)
    ____________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civil No. 1-04-cv-00502)
    District Judge: Honorable William W. Caldwell
    ____________
    Submitted Under Third Circuit LAR 34.1(a)
    October 25, 2011
    Before: VANASKIE, WEIS, and ROTH, Circuit Judges.
    (Filed: March 21, 2012)
    ____________
    OPINION OF THE COURT
    ____________
    VANASKIE, Circuit Judge.
    Ronald Champney appeals the District Court’s denial of his petition for habeas
    corpus arising out of a 1998 Pennsylvania state court conviction for burglary, robbery,
    theft, assault, terroristic threats, recklessly endangering another person, and criminal
    conspiracy. Champney was sentenced to fourteen and a half to forty years in prison.
    Champney raises two issues on appeal: 1) his ineffective assistance of counsel
    habeas claim was timely under the newly-discovered evidence exception to the habeas
    statute of limitations in 
    28 U.S.C. § 2244
    (d)(1)(D), and 2) five other habeas claims were
    timely under 
    28 U.S.C. § 2244
    (d)(1)(D) because he was entitled to equitable tolling due
    to his cognitive impairments.1 For the reasons stated below, we will affirm the District
    Court’s dismissal of Champney’s claims as untimely.
    I.
    We write primarily for the parties, who are familiar with the factual context and
    legal history of this case. While the procedural history underlying Champney’s appeal is
    somewhat complex, we will set forth only those matters necessary to our analysis.
    After Champney was convicted in 1998 by a Schuylkill County, Pennsylvania jury
    for burglary, robbery, theft, assault, terroristic threats, recklessly endangering another
    person, and criminal conspiracy, he requested that his trial counsel, Frank Cori, file an
    appeal. Cori refused and instead permitted the deadline to expire because Champney had
    not paid him. Champney attempted to file his appeal pro se, but the court rejected it
    because he was represented by counsel. After approximately three years of post-
    1
    The District Court had jurisdiction over Champney’s habeas petition pursuant to
    
    28 U.S.C. §§ 1331
     and 2254. We have appellate jurisdiction pursuant to 
    28 U.S.C. §§ 1291
     and 2253.
    2
    conviction proceedings, the Superior Court of Pennsylvania reinstated Champney’s right
    to file a direct appeal.
    Champney’s counsel then filed an Anders brief on appeal, arguing that Champney
    had no non-frivolous arguments. The Pennsylvania Superior Court disagreed that
    Champney had no non-frivolous arguments, but it nevertheless affirmed Champney’s
    convictions without further briefing. Judgment became final on December 7, 2002 when
    Champney’s deadline to appeal to the Supreme Court of Pennsylvania expired. The
    Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that “[a] 1-
    year period of limitation shall apply to an application for a writ of habeas corpus by a
    person in custody pursuant to the judgment of a State court.” 
    28 U.S.C. § 2244
    (d)(1).
    Therefore, Champney’s deadline for filing a writ of habeas corpus expired on December
    7, 2003, one year after his state court judgment became final.
    Champney filed a habeas petition in the Middle District of Pennsylvania under 28
    § 2254 (the “Petition”) on March 8, 2004, ninety days after the statute of limitations
    expired. The Petition asserted twenty claims, including several claims that the
    Pennsylvania Superior Court denied Champney’s right to effective assistance of counsel
    by disposing of his appeal on the merits despite Champney’s counsel’s improper Anders
    brief. On April 5, 2008, Champney filed an amendment to the Petition to add Claim 21
    based on additional information he discovered in an unrelated capital post-conviction
    3
    proceeding.2 Evidentiary hearings were held May 8 and May 26, 2009, on the issue of
    whether Champney was entitled to equitable tolling because of alleged mental deficiency.
    On August 11, 2008, Champney filed a “Supplemental and Amended” petition for
    writ of habeas corpus to raise new claims 22 through 27. On January 5, 2010, the District
    Court dismissed Champney’s Petition as time barred, and additionally dismissed his
    motion to file a supplemental petition advancing claims 21 through 27. On
    reconsideration, the District Court granted a certificate of appealability (“COA”) as to the
    dismissal of Claim 21 (ineffective assistance of counsel) on limitations grounds.
    Champney brought this appeal and further requested that this Court enlarge the
    COA to include the issue of whether the time to file claims 14, 15, 18, 22 and 24 should
    be equitably tolled because of his alleged mental incompetence. This Court enlarged the
    COA as Champney requested.3
    2
    Champney was convicted of the first degree murder of Roy Bensinger on
    October 25, 1999 in the Court of Common Pleas of Schuylkill County, Pennsylvania. He
    was sentenced to death on November 17, 1999. Judgment of Sentence was affirmed. See
    Commonwealth v. Champney, 
    832 A.2d 403
     (Pa. 2003). Champney obtained a new trial
    through the grant of post-conviction relief. The Commonwealth appealed the ruling and
    Champney filed a cross-appeal. These appeals are pending before the Supreme Court of
    Pennsylvania.
    3
    Appellees moved to strike from Champney’s brief Issues III and IV as beyond
    the scope of the COA because they present arguments on the merits of constitutional
    claims. The decision to issue a COA is independent of the merits of the claim. See
    Miller-el v. Cockrell, 
    537 U.S. 322
    , 331 (2003). We will grant the motion to strike
    because Issues III and IV inject non-relevant matters into the determination of whether
    Champney should be granted statutory or equitable tolling.
    4
    II.
    We exercise plenary review over statute of limitations issues. See Merritt v.
    Blaine, 
    326 F.3d 157
    , 161 (3d Cir. 2003). Although it does not appear that we have
    definitively decided the standard of review applicable to the question of equitable tolling
    where there is a dispute concerning the petitioner’s mental competence, we have applied
    de novo review where the underlying facts are undisputed. See Brinson v. Vaughn, 
    398 F.3d 225
    , 231 (3d Cir. 2005). Compare Robertson v. Simpson, 
    624 F.3d 781
    , 784 (6th
    Cir. 2010) (“where the facts are undisputed or the district court rules as a matter of law
    that equitable tolling is unavailable, we apply the de novo standard of review to a district
    court's refusal to apply the doctrine of equitable tolling; in all other cases, we apply the
    abuse of discretion standard.”) (quoting Dunlap v. United States, 
    250 F.3d 1001
    , 1007 n.
    2 (6th Cir.2001)). In this case, there is a dispute as to Champney’s competence. In the
    context of determining a defendant’s competence to stand trial, we have held that the
    district court’s factual findings concerning competency are reviewed for clear error. See,
    e.g., United States v. Leggett, 
    162 F.3d 237
    , 241 (3d Cir. 1998). Because we find that
    equitable tolling is not warranted in this case under a de novo standard of review, we
    need not decide whether a more deferential standard applies to the District Court’s factual
    findings in this case.
    A.
    In Claim 21 of the Petition, Champney argues that the Sixth Amendment
    ineffective assistance of counsel claim was timely because he discovered the relevant
    5
    information for bringing the claim during his unrelated capital post-conviction
    proceedings. Champney uncovered information indicating that his trial counsel, Frank
    Cori, had a conflict of interest based on a long-term friendship and criminal partnership
    with David Blickley, an initial suspect in Champney’s murder case and the principal
    witness against Champney at his murder trial.
    During Champney’s capital post-conviction proceedings, he subpoenaed
    information from the Federal Bureau of Investigation concerning its interviews with
    Blickley. On April 6, 2007, the FBI turned over an interview report to Champney
    detailing FBI discussions with Blickley concerning alleged criminal undertakings
    between Blickley and Cori. Champney discovered that Cori continued to represent
    Blickley in obtaining an agreement with the police to provide information concerning the
    murder in which Champney was standing trial while Cori was representing Champney.
    A habeas petitioner must file within one year from “the date on which the factual
    predicate of the claim or claims presented could have been discovered through the
    exercise of due diligence.” 
    28 U.S.C. § 2244
    (d)(1)(D). The District Court held that
    Claim 21 was untimely because Champney failed to show that he could not have
    discovered the information from the FBI report earlier. We agree with the District
    Court’s conclusion, but for slightly different reasons.4
    4
    We also reject Champney’s argument that we should allow equitable tolling
    because Champney’s convictions may affect the sentence in his capital case. We agree
    with the District Court’s conclusion that Champney’s instant appeal is not a capital case
    and therefore is not entitled to any special leniency.
    6
    A petitioner must file a habeas petition within one year of learning the vital facts
    necessary to make out his or her claim. See McAleese v. Brennan, 
    483 F.3d 206
    , 214 (3d
    Cir. 2007). To “delay the triggering of the running of the limitations period until all
    evidence in support of a petition is secured,” would create “a result which surely would
    run contrary to the intent of Congress through its enactment of the AEDPA to promote
    the finality of convictions.” 
    Id. at 215
    . The requisite “factual predicate” of a claim is the
    set of “vital facts” underlying the claim. 
    Id. at 214
    . Champney knew of the factual
    predicate of his trial counsel’s possible conflict of interest well before receiving the FBI
    report in 2007 because he already raised the claim in Pennsylvania state courts in 2005
    and in 2006. The precise claim that Attorney Cori rendered ineffective assistance of
    counsel due to a conflict of interest caused by his relationship with David Blickley
    appears in a counseled state post-conviction petition filed on Champney’s behalf on
    February 28, 2005, in the Court of Common Pleas of Schuylkill County, in a collateral
    challenge to the conviction at issue here. In this 2005 filing, Champney averred that Cori
    had multiple conflicts of interest arising from various relationships, including Cori’s
    relationship with Blickley. In a brief filed in the Pennsylvania Superior Court on March
    13, 2006 – more than a year before receipt of the FBI report – Champney again argued
    that Cori was conflicted in his representation because Cori had, at one time, represented
    Blickley.
    The FBI report may have provided greater evidentiary support for Champney’s
    claim, but it did not alert Champney to the claim itself. Champney’s Petition was
    7
    untimely because he filed it more than one year after recognizing the vital facts – Cori’s
    conflict of interest caused by his relationship with Blickley – underlying his claim.
    B.
    Champney also argues that five other habeas claims were timely based on
    equitable tolling because he suffers from mental impairments that prevented him from
    filing the Petition on time.5 In determining whether equitable tolling should be granted,
    we ask whether the petitioner faced extraordinary circumstances that stood in the way of
    timely filing and whether he or she exercised reasonable diligence. See Pabon v.
    Mahanoy, 
    654 F.3d 385
    , 399 (3d Cir. 2011). We, however, have made clear that “[t]he
    remedy of equitable tolling is extraordinary, and we extend it only sparingly.” Santos v.
    United States, 
    559 F.3d 189
    , 197 (3d Cir. 2009) (internal quotation marks omitted).
    Mental incompetence is not a per se cause for equitable tolling. See Nara v.
    Frank, 
    264 F.3d 310
    , 320 (3d Cir. 2001). For tolling to be appropriate, “the alleged
    mental incompetence must somehow have affected the petitioner’s ability to file” a
    timely action. Id.; see also Bolarinwa v. Williams, 
    593 F.3d 226
    , 232 (2d Cir. 2010)
    (placing the burden on the petitioner to demonstrate with particularized description the
    causal relationship between the mental deficiency and failure to timely file the petition).
    In May 2009, the District Court held an evidentiary hearing concerning
    Champney’s mental competence, at which Dr. Daniel Ragland and Dr. Julie Kessel
    5
    The one-year filing requirement is not a jurisdictional rule. See Day v.
    McDonough, 
    547 U.S. 198
    , 205 (2006). Section 2244(d) is subject to equitable tolling in
    appropriate circumstances. Holland v. Florida, __U.S.__, 
    130 S. Ct. 2549
    , 2554 (2010).
    8
    testified for Champney. Champney’s experts found his cognitive ability diminished, that
    he was impaired by neurodevelopmental brain dysfunction, and that he suffered from
    anxiety disorder. The Commonwealth responded with an expert witness to rebut the
    conclusion and dispute the reliability of the measures used to interpret Champney’s
    cognitive ability.6 We will not engage in the debate concerning the methodology of the
    experts’ evaluations, as we find Champney’s history of timely filing documents in court
    sufficient to negate the premise that his mental status constituted an “extraordinary
    circumstance” that impaired his ability to timely file the instant Petition.
    We have not previously provided clear direction on what may constitute
    extraordinary circumstances for purposes of tolling the statute of limitations based on
    mental incompetence. District Courts within our Circuit take a totality of the
    circumstances approach when presented with an equitable tolling argument premised on
    the petitioner’s mental incompetency. See Passmore v. Pennsylvania, No. 08-705, 
    2008 WL 2518108
     at *3 (M.D. Pa., 2008). A non-exclusive list of factors to consider includes:
    (1) [whether] the petitioner [was] adjudicated incompetent
    and, if so, when did the adjudication occur in relation to the
    habeas statutory period; (2) [whether] the petitioner [was]
    institutionalized for his mental impairment; (3) [whether] the
    petitioner handled or assisted in other legal matters which
    required action during the federal limitations period; and (4)
    [whether] the petitioner supported his allegations of
    impairment with extrinsic evidence such as evaluations and/or
    medications.
    6
    The Commonwealth’s expert found that Champney is able to reason and think
    abstractly, reads at an eighth grade level, and has the capacity to remember information in
    a very superior range (as high as the 98th percentile).
    9
    
    Id.
     (citing McCray v. Oxley, 553 F. Supp. 2d. 368, 372 (D. Del. 2008)).
    There is no evidence in this case that Champney has ever been adjudicated
    incompetent or institutionalized for his alleged mental impairments. And while
    Champney has supplied extrinsic evidence consisting of mental health evaluations, the
    Commonwealth presented countervailing evidence. Significantly, however, Champney’s
    participation in court proceedings over an extended period of time compel the conclusion
    that the extraordinary remedy of equitable tolling is not warranted here.
    Champney successfully filed a series of pro se petitions in 1998 and 1999.
    Champney initially sought state court relief a week after his November 13, 1998,
    conviction. In a pro se filing docketed November 20, 1998, Champney raised claims of
    Cori’s ineffective assistance in not calling witnesses and not presenting other favorable
    evidence. Approximately two weeks after his January 6, 1999 sentencing, Champney,
    again acting pro se, filed a petition to dismiss counsel, and a petition for post conviction
    relief and notice of appeal. In this filing, Champney renewed his earlier claim that Cori
    was ineffective for failing to call witnesses and in knowingly withholding evidence of his
    innocence. In February, 1999, Champney, again pro se, filed a petition to dismiss
    counsel; a petition for post conviction relief and notice of appeal; and a statement seeking
    leave to proceed in forma pauperis.
    Champney presents no evidence to suggest that his mental capacity deteriorated
    since filing his initial pro se petition in 1998. To the contrary, Champney’s own expert,
    10
    Dr. Ragland, found his mental status to have been stable over time.7 Champney did not
    suffer any new mental impairment or injury between the late 1990s, when he was able to
    act on his own behalf in state court, and during the time when a habeas petition could
    have been timely filed.8 Champney’s ability to file multiple petitions on his own behalf
    in 1998 and 1999, which was described as a “tenacious effort” by his counsel, cannot be
    reconciled with the notion that he is so mentally impaired as to have been unable to fill
    out the form necessary to initiate a timely habeas filing in 2003. Compare Brown v.
    Shannon, 
    322 F.3d 768
    , 774 (3d Cir. 2003) (denying equitable tolling based, in part, on
    the petitioner’s history of pro se filings within the appropriate time) with Hunter v.
    Ferrell, 
    587 F.3d 1304
    , 1308-09 (11th Cir. 2009) (finding petitioner’s well-documented,
    irreversible mental retardation was severe enough that petitioner was unable to
    understand and comply with the AEDPA’s filing requirements based, in part, on the
    recognition that petitioner never previously filed court documents).
    The record contains inconsistencies concerning Champney’s mental competency.
    Although Champney’s experts testified to his inability to navigate the procedural rules for
    7
    Dr. Kessel indicated that Champney had an increased level of anxiety during the
    relevant time period due to his unrelated capital case proceedings. However, as the
    District Court noted, and we agree, anxiety and depression would not have disabled
    Champney from filing the Petition in a timely manner.
    8
    Champney suggests that he was only able, according to Dr. Ragland, to file the
    petitions in 1998 and 1999 with the assistance of a fellow inmate. Because Champney’s
    mental state did not deteriorate from that time, we agree with the District Court’s
    conclusion that Champney could have similarly sought assistance for filing the instant
    Petition.
    11
    habeas relief, the record contains countervailing evidence indicating that any mental
    impairments would not have so affected his ability to make a timely filing as to warrant
    the extraordinary relief of equitable tolling. The District Court undertook an extensive
    analysis of the evidence and found that “Champney was sufficiently functional to have
    filed a timely 2254 petition.” (A. 34.) This finding by the able District Judge is certainly
    not clearly erroneous. Moreover, our plenary review of the record leads us to the same
    conclusion. The Commonwealth’s expert’s conclusion about Champney’s mental status,
    coupled with Champney’s history of filing pro se complaints, compels us to find that no
    extraordinary circumstance stood in the way of timely filing the Petition.
    III.
    For the foregoing reasons, we will affirm the judgment of District Court.
    12