Michael Piskanin, Jr. v. Kenneth Cameron , 537 F. App'x 25 ( 2013 )

GLD-434 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1924
___________
MICHAEL JOHN PISKANIN, JR.,
Appellant
v.
KENNETH CAMERON, AS SUPERINTENDENT SCI CRESSON; JAMES B.
MARTIN, AS DISTRICT ATTORNEY LEHIGH CO., PA; THOMAS W. CORBETT,
ESQ. AS ATTORNEY GENERAL OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5-11-cv-04698)
District Judge: Honorable Berle M. Schiller
____________________________________
Submitted on Appellant’s Request for a Certificate of Appealability
Under 28 U.S.C. § 2253(c)(1) and for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 25, 2013
Before: FUENTES, FISHER and VANASKIE, Circuit Judges
(Opinion filed: October 2, 2013)
_________
OPINION
_________
PER CURIAM
On July 18, 2011, Michael John Piskanin, Jr., filed a pro se habeas petition
challenging his 2005 convictions by the Pennsylvania Court of Common Pleas for Lehigh
County. The Magistrate Judge issued a Report and Recommendation (“R&R”) denying
the petition as untimely. Specifically, she concluded that Piskanin’s judgment of
sentence became final on June 29, 2006, and that Piskanin’s pro se PCRA petition was
filed on April 1, 2010. His PCRA petition was deemed untimely because it was not filed
within one year of the date on which his judgment of sentence became final. See 42 Pa.
Cons. Stat. Ann. § 9545(b)(1). The Magistrate Judge then concluded that, because
Piskanin’s PCRA petition was not properly filed, see 28 U.S.C. § 2244(d)(2), it did not
toll AEDPA’s one-year limitations period, and she therefore denied his § 2254 petition as
untimely. The District Court adopted the R&R in its entirety. Piskanin seeks a certificate
of appealability (“COA”).
In reviewing Piskanin’s application, we noted that his judgment of sentence
became final on October 8, 2009, see Commonwealth v. Piskanin, No. 2072 EDA 2005,
986 A.2d 1262 (Pa. Super. Ct. Sept. 8, 2009), and that his petition for state post-
conviction relief was filed on April 1, 2010, see Commonwealth v. Piskanin, No. 1577
EDA 2010, 37 A.3d 1233 (Pa. Super. Ct. Oct. 17, 2011), allocatur denied, 61 A.3d 191(Pa. Feb. 5, 2013) (table). It appeared to us that, because his PCRA petition was properly
filed within one year of the date on which his judgment of sentence became final, it tolled
the statute of limitations for filing his federal habeas petition. See 28 U.S.C. §
2244(d)(2). We therefore ordered Appellees to show cause why a COA should not be
2
issued as to Piskanin’s claim that the District Court erred in denying his petition for a writ
of habeas corpus as untimely. We also ordered them to show cause why, if a COA is
granted, the District Court’s judgment should not be summarily vacated, and the matter
remanded.
Appellees responded to the show cause order, conceded the timeliness of
Piskanin’s petition, and agreed that the case should be remanded to the District Court.
They have not argued that this appeal should be resolved in any particular way. We now
grant Piskanin’s application for a COA, as jurists of reason would debate both the District
Court’s procedural ruling and whether the claims noted below state valid claims of the
denial of a constitutional right, particularly in light of the fact that the District Court did
not reach the merits of those claims.1 See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 484 (2000); Morris v. Horn, 187 F.3d 333, 341 (3d Cir. 1999).
The result reached by the District Court was not due to carelessness on its part.
Appellees represented that Piskanin’s judgment of sentence became final on June 29,
2006. (Dkt. No. 25, p. 4.) Piskanin filed over twenty appeals in state court alone relating
to his conviction and sentence, and the record is not entirely in order.2 Even the panel of
Superior Court judges that affirmed the denial of his PCRA petition, (No. 1577 EDA
1
We have jurisdiction under 28 U.S.C. § 1291.
2
Appellees noted as much, stating that it had “boxes of paperwork associated with
this case” due to Piskanin’s “multitude of frivolous filings.” (Dkt. No. 33, p. 6 n.2.)
3
2010), was unaware of the date upon which his judgment of sentence was affirmed, (No.
2072 EDA 2005).3
Because the record supports that Piskanin’s petition was timely filed, and in light
of Appellees’ concession, we will vacate and remand this case to the District Court for
consideration of any procedural or substantive issues other than the issue of the
timeliness of Appellant’s petition. All pending motions are denied.4
3
The state courts never addressed Piskanin’s claims on the merits. The Superior
Court affirmed the PCRA court’s dismissal of Piskanin’s petition as untimely, because it,
too, was under the mistaken impression that his judgment of sentence became final on
June 29, 2006.
4
Piskanin’s numerous pending motions are merely vehicles through which he
reiterates the same arguments in his request for a certificate of appealability, or else
requests relief that is not available from this Court.
4