McCollum v. Briggs et al

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHNNIE MCCOLLUM,
Petitioner,
v.
WARDEN GREGORY BRIGGS,
et
al.,
Respondents.
CIVIL ACTION NO. 1:24-cv-01305
(SAPORITO, J.)
MEMORANDUM
Johnnie McCollum, incarcerated at SCI-Houtzdale in Houtzdale,
Pennsylvania, proceeds on a petition for writ of
habeas corpus pursuant
to 28 U.S.C. § 2254. Because this petition was filed long after the
expiration of the one-year limitation period,
see 28 U.S.C. § 2244(d)(1)(A),
and McCollum is not entitled to equitable tolling, the petition will be
dismissed.
I. 	STATEMENT OF THE CASE
On December 3, 2014, in the Court of Common Pleas of Cumberland
County, a jury found McCollum guilty of three counts of robbery, one
count of theft by unlawful taking, and four related conspiracy counts, all
arising 	from 	a 	home 	invasion 	in 	Camp 	Hill, 	Pennsylvania.
	See
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Commonwealth 	v. 	McCollum, 	No. CP-21-CR-1292-2014 	(Cumberland
County C.C.P.). McCollum received an aggregate sentence of five to
fifteen years imprisonment. As described by the trial court and recited by
the Pennsylvania Superior Court on direct appeal, the facts of the case
were as follows:
On March 29, 2014, the victim, Ko Fan Chang, a 44–
year–old 	male, 	procured 	the 	services 	of 	two 	young
women who were working as prostitutes . . . The women,
Brittany 	Shupp 	and 	Rangina 	Barechzai, 	had 	met
[McCollum and his co-defendant, Deontre Goss] a few
weeks before and they eventually discussed a plan to rob
one of the [women’s] clients. [Shupp] testified that on
March 	29 	after 	arriving 	at 	Mr. 	Chang’s 	home,
[Barechzai] texted the victim’s address to Defendants
while she distracted the victim in the bedroom. The
Defendants came to the victim’s home while the women
were still there. After they entered the home, Mr. Goss
held a gun to the victim’s head. The victim was placed
on the floor and [Shupp] tied him up with an electrical
cord. [Shupp] testified that she saw [McCollum] getting
stuff from the house. Overall, the Defendants stole two
laptop 	computers, 	an 	attaché 	case 	containing
approximately $500.00 in cash, and credit cards and a
digital camera . . .
The two women were eventually identified through their
use of a webpage entitled “Backpage.com.” They were
listed on this website as providing adult entertainment
services. When arrested, the two agreed to cooperate
with police and the District Attorney. They testified at
trial that 	[McCollum and Goss] were 	the 	men who
committed the robbery.
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Commonwealth v. McCollum, No. 198 MDA 2015, 2014 WL 11256900, at
*1 (Pa. Super. Ct. Apr. 13, 2016) (record citation omitted); (Doc. 21-8).
A. Procedural History
McCollum appealed his conviction on January 29, 2015, raising
eleven issues: challenges to the sufficiency of the evidence for each of the
eight convictions, a claim that the trial court erred in denying a motion
to transcribe proceedings, and two claims that he was prejudiced by the
Commonwealth’s failure to disclose statements by Shupp before trial. On
April 13, 2016, the Pennsylvania Superior Court reversed his convictions
on 	two 	counts 	for 	insufficient 	evidence1, 	but 	affirmed 	all 	other
convictions.
See Commonwealth v. McCollum, No. 198 MDA 2015, 2014
WL 11256900 (Pa. Super. Ct. Apr. 13, 2016). McCollum did not file a
petition for allowance of appeal in the Pennsylvania Supreme Court.
McCollum has subsequently filed several Post Conviction Relief Act
(“PCRA”) petitions. He filed his first PCRA petition
pro se on March 29,
1 Specifically, the Superior Court reversed McCollum’s conviction
for physically taking or removing property from the person of another (18
Pa.C.S. § 3701(a)(1)(v)) and a related conspiracy conviction, because
there was insufficient evidence that items taken from the victim’s home
were on the victim’s person or in his custody or control.
See McCollum,
2014 WL 11256900 at *4.
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2017. After McCollum was appointed counsel, he ultimately proceeded on
four claims of ineffective assistance of trial counsel. This petition was
denied on September 25, 2017, and was not timely appealed.
See (Docs.
21-16, 21-18). The record does not indicate that McCollum took any
further action in this case until 2021; in the intervening years, he was
released on parole. In an apparently unrelated case, he was charged on
August 4, 2020, with aggravated assault and related charges in the Court
of Common Pleas of Dauphin County, for conduct occurring on July 16,
2020.
	See Commonwealth v. McCollum, No. CP-22-CR-0002542-2020
(Dauphin County C.C.P.).
On October 29, 2021, McCollum filed a second PCRA petition from
the Dauphin County Prison, in which he claimed that he “never received
an order from the courts stating whether [the 2017 petition] was denied
or granted.” (Doc. 21-19). After a hearing, the court “found that prior
PCRA counsel had abandoned [McCollum] when she failed to file a notice
of appeal from the denial of his PCRA claims.” (Doc. 21-25 at 3). The court
permitted McCollum to appeal the PCRA denial
	nunc pro tunc and
granted his request to proceed
pro se.
See (Docs. 21-21, 21-23, 21-26).
Ultimately, 	this 	appeal 	was 	dismissed 	on 	September 	21, 	2023, 	for
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McCollum’s failure to file a brief.
Commonwealth v. McCollum, No. 1158
MDA 2022 (Pa. Super. Ct.) (Doc. 21-27). McCollum then filed a third
PCRA petition, 	which 	resulted 	in 	another 	restoration 	of 	his 	PCRA
appellate rights on the basis that he had been “denied his case file” by an
attorney who had previously represented him.
See (Doc. 21-29). On June
4, 2024, this appeal was also dismissed for McCollum’s failure to file a
brief.
Commonwealth v. McCollum, No. 406 MDA 2024 (Pa. Super. Ct.);
(Doc. 21-31).
McCollum filed his petition for writ of
habeas corpus in this court
on August 5, 2024. He has also filed another PCRA petition in his state
criminal case on August 12, 2025, and the PCRA court has issued a notice
of intent to dismiss the petition.
B. Habeas Claims Presented
In the instant petition, McCollum asserts four grounds for relief:
• 	(1) “Failure to strike bias[ed] jurors – Ineffective assistance of
counsel”;
• 	(2) “No PSI was ever done – nor requested by the Court prior to
sentencing – failed to place adequate reasons on the record for
dispensing with report”;
• 	(3) 	“Ineffective 	assistance 	of 	counsel 	– 	failed 	to 	uncover 	and
investigate and present mitigating evidence at sentencing”;
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• 	(4) “Sentences should have been merged under [42 Pa.C.S. § 9765].”
II. 	DISCUSSION
As an initial matter, it is unclear whether McCollum is currently in
custody pursuant to the challenged sentence, or under his unrelated
sentence in the Dauphin County case. In the latter case, McCollum pled
guilty 	on 	October 	25, 	2022, 	was 	sentenced 	to 	five 	to 	ten 	years’
incarceration, and is currently seeking PCRA relief.
See Commonwealth
v. McCollum, No. CP-22-CR-0002542-2020 (Dauphin County C.C.P.).
To sustain habeas jurisdiction, a petitioner’s ongoing incarceration
or other “restraint on physical liberty” must be a “direct consequence of
[the] conviction” being challenged.
	Piasecki v. Ct. of Common Pleas,
Bucks Cnty., Pa., 917 F.3d 161, 165-66 (3d Cir. 2019) (quoting
Stanbridge
v. Scott, 791 F.3d 715, 719 (7th Cir. 2015)). A petitioner generally cannot
challenge a past conviction once he has completed that sentence, even if
he 	remains 	imprisoned on 	a 	different 	conviction.
	See 	Orie 	v. 	Sec’y
Pennsylvania Dep’t of Corr., 940 F.3d 845, 850 (3d Cir. 2019). Because it
is unclear from the record whether McCollum has completed the sentence
he is challenging here, the Court resolves the petition on the alternative
ground that it is untimely.
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A. Statute of Limitations
The 	Antiterrorism 	and 	Effective 	Death 	Penalty 	Act 	of 	1996
(“AEDPA”) established a one-year statute of limitations for the filing of
federal
habeas corpus petitions pursuant to 28 U.S.C. § 2254.
See 28
U.S.C. § 2244(d). Under the AEDPA, a state prisoner generally must file
any federal habeas petition within one year of the date that his conviction
“became final by the conclusion of direct review or the expiration of the
time for seeking such review.”
See 28 U.S.C. § 2244(d)(1)(A).2 Here, the
Superior Court adjudicated McCollum’s direct appeal on April 13, 2016.
Because he did not file a petition for allocatur in the Pennsylvania
Supreme Court, his conviction became final 30 days later, on May 13,
2016.
See Pa. R. App. P. 1113(a)(1) (permitting 30 days after entry of a
Superior Court order to file a petition for allocatur). Thus, absent any
applicable tolling, McCollum had until May 13, 2017, to timely file his
federal petition for writ of
habeas corpus.
2 Although the statute provides additional time “if the applicant
was prevented from filing” a habeas petition through unlawful “State
action,”
	see § 2244(d)(1)(B), any alleged failures by appointed PCRA
counsel in this case would not qualify.
See,
e.g.,
Ruiz v. Overmyer, No.
1:17-CV-01979, 2018 WL 2302699, at *3-4 (M.D. Pa. May 21, 2018) (“the
actions or inactions of PCRA counsel do not constitute a state-created
impediment to filing of a habeas petition”).
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Although the statute provides for tolling of the limitation period
while “a properly filed application for State post-conviction or other
collateral review . . . is pending,” § 2244(d)(2), this statutory tolling does
not 	make 	McCollum’s 	petition 	timely. 	After 	McCollum’s 	conviction
became final on May 13, 2016, 320 days passed before he filed his first
PCRA petition on March 29, 2017. The limitation period was tolled while
that petition was pending. However, after the petition was denied on
September 25, 2017, approximately four years passed before he filed a
second PCRA petition seeking leave to appeal that decision.
B. Equitable Tolling
McCollum is not entitled to equitable tolling of the statute of
limitations. A petitioner is “‘entitled to equitable tolling’ only if he shows
‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way’ and prevented timely
filing.”
See Holland v. Florida, 560 U.S. 631, 645 (2010) (quoting
Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the burden
of establishing that he is entitled to equitable tolling,
Pace, 544 U.S. at
418, 	and 	must 	show 	that 	he 	“exercised 	reasonable 	diligence” 	in
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attempting to bring the claims despite the extraordinary circumstances.
Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004) (citation omitted).
McCollum does not directly address why his petition was untimely
filed, although the record reveals a partial explanation for some of the
delay. On April 18, 2016, five days after his direct appeal was resolved,
his appellate 	counsel advised him that he 	could file 	a petition 	for
allowance of appeal to the Pennsylvania Supreme Court. McCollum did
not respond, but allegedly “assumed [his] attorney filed [that] petition
due to him being [McCollum’s] legal representation.” In September 2016,
McCollum wrote a letter to the Superior Court styled as a “formal
complaint” 	against 	counsel, 	for 	counsel’s 	alleged 	failure 	to 	apprise
McCollum of the status of his case. On September 15, 2016, counsel
responded 	directly 	to 	McCollum, 	stating 	that 	McCollum 	had 	never
advised him that he wanted to file a petition for allowance of appeal, and
explaining options for how McCollum could proceed.
See (Doc. 21-14 at
14-17). McCollum ultimately filed a timely PCRA petition on March 25,
2017.
Even if this miscommunication with direct appeal counsel could
justify equitable tolling from April 18 through September 15, 2016,
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McCollum provides little explanation for the delay from September 2017,
when his first PCRA petition was denied, through October 2021, when he
filed his next PCRA petition. In an amended petition filed on his behalf
in 2022, newly appointed counsel alleged that McCollum’s prior counsel
“failed to inform [McCollum] that his initial PCRA was denied and/or of
his right to appeal the denial of the PCRA” in 2017.
See (Doc. 21-20).
While the PCRA court found that this “abandonment”3 justified the
restoration of McCollum’s PCRA appeal rights (Doc. 21-25 at 3), it does
not justify equitable tolling for the intervening years during which he
made no apparent attempt to pursue habeas relief.4
See Schlueter, 384
F.3d at 76-78;
Ruiz v. Overmyer, No. 1:17-CV-01979, 2018 WL 2302699,
at *3-4 (M.D. Pa. May 21, 2018);
Wright v. Kerestes, No. 13-6204, 2014
3 	Even 	if 	PCRA 	counsel’s 	conduct 	were 	considered 	“complete
abandonment” as opposed to “error, miscalculation . . . or other mistake,”
that is not sufficient for equitable tolling purposes; the petitioner must
still show that he diligently pursued his rights.
See Pelzer v. Mahally,
388 F. Supp. 3d 366, 377 (M.D. Pa. 2019) (citations omitted).
4 Notwithstanding any confusion about the status of his state court
proceedings, McCollum could have protectively filed his habeas petition
in federal court to preserve his AEDPA limitations period and requested
that the Court stay the habeas proceedings.
See Heleva v. Brooks, 581
F.3d 187 (3d Cir. 2009).
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WL 6454572, at *16 (E.D. Pa. Nov. 17, 2014) (“Failing to determine the
status 	of 	an 	appeal 	for 	four 	years 	does 	not 	constitute 	reasonable
diligence.”);
DeShields v. Kerestes, No. 3:13-CV-1965, 2014 WL 2737413,
at *3-5 (M.D. Pa. June 13, 2014).
McCollum also makes vague allegations that one of his appellate
filings was not received because “the prison [he] was at must have
tampered” with his outgoing mail,
see (Doc. 1 at 5, 9), and some of his
documents were “unlawfully destroyed in a flood” (Doc. 25 at 1). But he
has not alleged that these events prevented him from filing a habeas
petition, and even if they were considered “extraordinary circumstances,”
these 	isolated 	incidents 	could 	not 	sustain 	a 	finding 	of 	reasonable
diligence over a four-year period.
See Brown v. Shannon, 322 F.3d 768,
773 (3d Cir. 2003) (“[I]f the person seeking equitable tolling has not
exercised 	reasonable 	diligence 	in 	attempting 	to 	file 	after 	the
extraordinary circumstances began . . . the extraordinary circumstances
[ ] did not prevent timely filing.”).
Although the Supreme Court has recognized an exception to the
limitations period for a claim of actual innocence supported by new,
reliable 	evidence,
	see 	McQuiggin 	v. 	Perkins, 	569 	U.S. 	383 	(2013),
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McCollum does not allege actual innocence or present any new evidence
to that effect.
See Reeves v. Fayette SCI, 897 F.3d 154 (3d Cir. 2018) (“The
actual 	innocence 	standard 	is 	satisfied 	only 	in 	“the 	‘rare’ 	and
‘extraordinary’ case where ‘a petition presents evidence of innocence so
strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless
constitutional error.’”) (quoting
McQuiggin, 569 U.S. at 392).
III. 	CONCLUSION
Accordingly, the Court will dismiss McCollum’s petition. Because
jurists of reason would not debate the dismissal of this petition on
procedural grounds, no certificate of appealability will issue.
See Slack v.
McDaniel, 	529 	U.S. 	473, 	484 	(2000); 	28 	U.S.C. 	§ 	2253(c)(2). 	An
appropriate order follows.
Dated: March 6, 2026
	s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States District Judge
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