Richard v. Harry et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RYAN RICHARD,
Petitioner,
v.
LAUREL R. HARRY, et al .,
Respondents.
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Civil No. 1:26-CV-00122
Judge Jennifer P. Wilson
MEMORANDUM
Before the court is an amended petition under 28 U.S.C. § 2254 filed by
Ryan Richard (“Petitioner”), a motion to proceed in forma pauperis, and a motion
to appoint counsel. (Docs. 9, 10, 11.) The court will screen the amended petition
under Rule 4, dismiss the petition as untimely, deny the motion to proceed in
forma pauperis as moot, deny the motion to appoint counsel, and close the case.
BACKGROUND AND PROCEDURAL H ISTORY
The history of the state proceedings are adequately summarized by the
February 5, 2025 decision of the Superior Court of Pennsylvania:
Appellant pled guilty in 1989 to third-degree murder in the killing of
his wife at their Berks County home. He was scheduled to be released
from prison in December 2012. At some point before his release from
prison, Appellant mailed two letters to his now deceased mother. The
first letter, which was undated and listed Appellant’s mother as the
intended addressee (the “First Letter”), contained threats aimed at
several individuals involved in the criminal proceedings which lead to
Appellant's 1989 guilty plea. 	The First Letter also outlined a plan to
break into a home, kill the occupants, and kill any responding police
officers. 	The second letter, which also was undated but addressed to
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Appellant himself (the “Hit List Letter”), contained death threats
targeting multiple individuals involved in Appellant’s 1989 murder
conviction, together with Appellant’s plans for killing several of the
named individuals upon his release from incarceration.
Following the death of Appellant’s mother in January 2010, the First
Letter and the Hit List letter were discovered by Appellant’s brother,
Russell Richard (“Russell”). 	Russell, in turn, produced the letters to
the Pennsylvania State Police, who alerted the individuals to whom
threats had been directed. On December 13, 2012, upon release from
prison, Appellant was arrested and charged with eight counts of
terroristic threats and eight counts of harassment related to the letters.
The charges were filed at Center County docket number CP-14-CR-
0016-2013, a case which we shall refer to as the “Letters Charges” at
docket “16-2013.” 	While awaiting trial on the Letters Charges,
Appellant moved to dismiss the case, claiming that the letters were
written outside the five-year limitations period. On April 2, 2013, the
trial court convened a hearing on Appellant’s motion, at which Russell
testified.
Two days later, on April 4, 2013, Appellant made an unmonitored
telephone call to his estranged daughter, Robyn Apgar, from his
counselor’s office in the prison. 	During the conversation, Appellant
directed 	threatening 	remarks 	toward 	his 	daughter. 	In 	addition,
Appellant threatened Russell about his recent testimony at the hearing
held on April 2, 2013. On April 10, 2013, Appellant was charged with
two additional counts of terroristic threats, filed at docket number CP-
13-CR-0708-2013 	(“708-2013”), 	and 	one 	count 	of 	witness
intimidation, filed at docket number CP-14-CR-0711-2013 (“711-
2013”). Collectively, we shall refer to these charges as the “Telephone
Charges.”
The Letters Charges and the Telephone Charges were consolidated for
trial in November 2014. 	At trial, the Commonwealth focused largely
on the contents of the First Letter and the Hit List Letter. At the close
of the Commonwealth’s case, Appellant moved for acquittal in the
Letters Charges case, renewing his contentions based upon the statute
of limitations. The trial court granted Appellant’s motion on one count
of terroristic threats, and, at the conclusion of trial, Appellant was found
not guilty of the remaining seven counts of terroristic threats at docket
16-2013. The jury found Appellant guilty of the two counts of
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terroristic threats at 708-2013 and the witness intimidation charge
docketed at 711-2013. 	On August 6, 2015, Appellant received an
aggregate sentence of seven to 17 years’ incarceration. On November
15, 2016, this Court affirmed Appellant's judgment of sentence on
direct appeal, see Commonwealth v. Richard, 150 A.3d 504 (Pa. Super.
2016), and Appellant did not seek allowance of appeal with the
Supreme Court.
Acting pro se, Appellant filed a timely, first petition for collateral relief
under the PCRA on January 6, 2017. 	The PCRA court appointed
counsel, who amended the petition on November 21, 2017. A two-day
hearing was conducted in November 2018, and the PCRA court denied
the petition on July 15, 2019. On August 13, 2019, Appellant filed two
separate notices of appeal at 708-2013 and 711-2013 but did not appeal
at 16-2013. This Court affirmed the dismissal of Appellant’s petition
on September 29, 2020, and the Supreme Court denied review on
February 10, 2021. See Commonwealth v. Richard, 240 A.3d 988 (Pa.
Super. 2020) (non-precedential decision), appeal denied, 244 A.3d
1228 (Pa. 2021).
Appellant filed, pro se, a second petition for collateral relief on March
29, 2021. Appointed counsel filed an amended petition on August 27,
2021. The thrust of the second petition was that Appellant’s first PCRA
counsel was ineffective in failing to preserve for appeal claims relating
to the Hit List Letters at 16-2013. 	Appellant viewed these claims as
interwoven with his convictions at the other two dockets and critical to
his prospects for obtaining collateral relief. See Appellant’s Brief at 6-
7. 	The PCRA court denied the petition without a hearing on January
31, 2022. No appeal was taken from the denial of Appellant’s second
petition.
Appellant filed a third petition for relief under the PCRA on December
1, 2022. 	The petition requested reinstatement of Appellant’s right to
appeal the denial of his second petition for collateral relief. To support
his claim, Appellant alleged that he asked counsel on his second
petition to appeal the PCRA court’s January 31, 2022 dismissal order.
Appellant further alleges that counsel was ineffective in failing to carry
out his request. 	A third collateral relief counsel was appointed to
represent 	Appellant, 	but 	that 	attorney 	withdrew 	when 	a 	fourth
appointment was made. Following an evidentiary hearing, the PCRA
court denied Appellant’s third petition on December 1, 2023. 	In an
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opinion that accompanied the dismissal order, the court credited the
testimony offered by counsel on Appellant’s second petition, who
explained that she advised Appellant to forgo an appeal because it was
unlikely to succeed and could imperil Appellant's efforts to secure
parole. 	See Trial Court Opinion, 12/1/23, at 2 and 5. 	The court also
credited 	counsel’s 	testimony 	that 	Appellant 	agreed 	with 	her
recommendations and that he failed to respond to counsel’s written
communication confirming that no appeal would be taken. See id. at 5.
Under these circumstances, the court concluded that Appellant failed to
meet his burden in establishing that counsel had been ineffective. 	See
id. at 5. This timely appeal followed.
Commonwealth v. Richard, 335 A.3d 312 (Pa. Super. Ct.), appeal denied, 343
A.3d 728 (Pa. 2025). The Superior Court stated that Petitioner was appealing from
the dismissal of the third PCRA petition as untimely. Id., at *3–4. The Superior
Court affirmed this dismissal. Id. Petitioner filed a petition for allowance of
appeal with the Pennsylvania Supreme Court, which was denied on July 22, 2025.
Commonwealth v. Richard, 343 A.3d 728 (Pa. 2025).
Petitioner then filed a Section 2254 petition dated January 12, 2026, and
received and docketed by the court on January 20, 2026. (Doc. 2.) Petitioner paid
the filing fee. (Doc. 1.) On January 21, 2026, the court issued an order explaining
the limitations of a petitioner’s right to file subsequent habeas petitions in the
future if the court considered the petition as written. (Doc. 5.) Petitioner then
notified the court that he desired to withdraw his petition. (Doc. 7.) On March 19,
2026, the court entered an order withdrawing the petition, terminating the case, and
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instructing Petitioner that he could file an amended petition and the court would
reopen the case. (Doc. 8.)
On August 25, 2026, the court received and docketed an amended petition
along with a motion for leave to proceed in forma pauperis and a motion to appoint
counsel. (Docs. 9, 10, 11.)
VENUE
Under 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus under
Section 2254 can be filed in either the district where the petitioner is in custody, or
in the district where the petitioner was convicted and sentenced. 28 U.S.C. §
2241(d). Petitioner is housed at SCI-Frackville in Frackville, Pennsylvania, which
is located in this district. See 28 U.S.C. § 118(b). Therefore, venue in this district
is proper.
S TANDARD OF REVIEW
Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who
were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran,
247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141,
146 (1998)). The exercise of restraint by a federal court in reviewing and granting
habeas relief in state court criminal prosecutions is appropriate due to
considerations of comity and federalism. See Engle v. Isaac, 456 U.S. 107 (1982).
“The States possess primary authority for defining and enforcing the criminal law.
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In criminal trials they also hold the initial responsibility for vindicating
constitutional rights. Federal intrusions into state criminal trials frustrate both the
States’ sovereign power to punish offenders and their good-faith attempts to honor
constitutional rights.” Id. States also have a recognized interest in the finality of
convictions that have survived direct review within the state court system. See
Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed
by a person in state custody “only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
If a claim presented in a § 2254 petition has been adjudicated on the merits in state
court proceedings, habeas relief cannot be granted unless:
the adjudication of the claim – (1) resulted in a decision that was
contrary 	to, 	or 	involved 	an 	unreasonable 	application 	of, 	clearly
established [f]ederal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
Id. § 2254(d).
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes a one-year limitations period for state prisoners seeking federal habeas
review:
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(1) 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. The limitation period shall run from the latest of –
(A) 	the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) 	the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) 	the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and
made 	retroactively 	applicable 	to 	cases 	on 	collateral
review; or
(D) 	the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this section.
28 U.S.C. § 2244(d).
Under Pennsylvania law, a defendant who has been convicted and sentenced
of a crime, such as Petitioner, has thirty (30) days in which to file a direct appeal,
starting from the latter of (a) the date of sentencing, Pa. R. Crim. P. 720(A)(3)), or
(b) the date of an order deciding a timely post-sentence motion or acknowledging
the defendant’s withdrawal of such a timely post-sentence motion, Pa. R. Crim. P.
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720(A)(2). The defendant’s judgment becomes final “at the conclusion of direct
review, including discretionary review in the Supreme Court of the United States
and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” See 42 Pa. C.S.A. § 9545(b)(3).
In the instant action, Petitioner’s conviction became “final” on or about
December 15, 2016, i.e, thirty days after the Superior Court affirmed the judgment
of sentence on direct appeal. See Pa.R. A.P. 1113(a). Thus, the one-year
limitations period set forth in Section 2244(d)(1) commenced running the
following day, i.e., on December 16, 2016, and Petitioner had one year or until
December 16, 2017 to file his Section 2254 petition in this court. Petitioner,
however, did not file his petition in this court until January 20, 2026. (Doc. 2.)
This is over seven years after the one-year statute of limitations had already
expired. Consequently, the court finds that his petition is untimely.
However, the court’s analysis does not end there. The court must next
determine whether Petitioner is entitled to any statutory or equitable tolling, or
relief under the actual innocence exception. For the reasons discussed below, the
court finds that Petitioner is entitled to some statutory tolling, but not any relief
under equitable tolling or the actual innocence exception. However, despite the
tolling, his petition is still untimely.
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A. Statutory Tolling
With respect to statutory tolling, the court observes that, under Section
2244(d)(2), the one-year limitations period is tolled with respect to “[t]he time
during which a properly filed application for State post-conviction or other
collateral review . . . is pending[.]” See 28 U.S.C. § 2244(d)(2). Here, the record
reflects that Petitioner filed a PCRA petition on January 6, 2017, tolling the one-
year limitations period after twenty-one (21) days had elapsed—i.e., counting from
December 16, 2016 (when the one-year limitations period initially commenced) to
January 6, 2017 (when Petitioner filed his PCRA petition). The PCRA court
denied his request for relief on July 15, 2019. On August 13, 2019, Petitioner filed
notices of appeal and the Superior Court affirmed the dismissal of Petitioner’s
petition on September 29, 2020. The Supreme Court denied review on February
10, 2021.
Therefore, the tolling ended on February 10, 2021. Petitioner filed a second
PCRA petition on March 29, 2021, tolling the one-year limitations period after an
additional forty-seven (47) days. The PCRA court denied the second petition on
January 31, 2022 and no appeals were taken.
Petitioner then filed a third petition on December 1, 2022. However, this
petition does not toll the statue of limitations because the Superior Court of
Pennsylvania found this petition to be untimely. Commonwealth v. Richard, 335
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A.3d 312 (Pa. Super. Ct.), appeal denied, 343 A.3d 728 (Pa. 2025). “[A]n
untimely petition for collateral relief under the state statute of limitations will not
toll the time provision of the AEDPA.” Pace v. DiGuglielmo, 544 U.S. 408
(2005). As such, it did not toll the statute of limitations, and March 2, 2022 (thirty-
days after the January 31, 2022 PCRA denial) is the end of the tolling period. See
PA. R.A.P. 903(a) (providing that a petition for allowance of appeal to the
Pennsylvania Superior Court shall be filed within thirty (30) days after the entry of
the trial court’s dismissal of Petitioner’s PCRA petition).
Consequently, because Petitioner’s Section 2254 petition was not filed in
this court until January of 2026, statutory tolling does not overcome the
untimeliness of his petition. Therefore, the court turns to the question of whether
the one-year limitations period set forth in Section 2244(d)(1) is subject to
equitable tolling or whether Petitioner is entitled to relief under the actual
innocence exception.
B. Equitable Tolling
“Equitable tolling is available ‘only when the principle of equity would
make the rigid application of a limitation period unfair.’” Satterfield v. Johnson,
434 F.3d 185, 195 (3d Cir. 2006) (quoting Merritt v. Blaine, 326 F.3d 157, 168 (3d
Cir. 2003)). For that reason, “[a] petitioner seeking equitable tolling bears the
burden to show that he diligently pursued his rights and that some ‘extraordinary
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circumstance stood in his way.’” See id. (quoting Pace, 544 U.S. at 418).
Equitable tolling may be appropriate if: (1) the petitioner has been “actively
misled[;]” (2) the petitioner “has in some extraordinary way been prevented from
asserting his rights;” or (3) the petitioner “has timely asserted his rights mistakenly
in the wrong forum.” See id. (quoting Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.
2001)).
Petitioner makes no allegations in furtherance of equitable tolling. Petitioner
argues that two attorneys refused to raise his claims of venue and jurisdiction
restrictions, which cost him the ability to raise them in his PCRA appeal. (Doc. 9,
pp. 9–10.) He also states that the PCRA court refused to consider the matter in the
July 15, 2019 decision. (Doc. 9, p. 10.) Petitioner was granted a second
opportunity through the PCRA court in his section PCRA petition. Therefore, this
claim of ineffective assistance of counsel does not rise to the level of prevention
required to justify equitable tolling because he got a second opportunity to raise the
issues in his second PCRA petition.
3. Actual Innocence
The court begins with the basic legal tenet that the actual innocence
exception “applies to a severely confined category: cases in which new evidence
shows ‘it is more likely than not that no reasonable juror would have convicted
[the petitioner].’” See McQuiggin v. Perkins, 569 U.S. 383, 394–95 (2013)
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(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Thus, relief under this
exception is exceedingly rare, see id. at 386, and the standard for establishing
actual innocence is an exacting one, see id. at 401. The standard demands “new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.”
See Schlup, 513 U.S. at 324. Accordingly, a habeas corpus petitioner has not met
this standard “‘unless he persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.’” See McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S.
at 329).
“Because such evidence is obviously unavailable in the vast majority of
cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324;
Sistrunk v. Rozum, 674 F.3d 181, 192 (3d Cir. 2012) (explaining that “Schlup sets a
supremely high bar”). Thus, “[p]roving actual innocence based on new evidence
requires the petitioner to demonstrate (1) new evidence (2) that is reliable and (3)
so probative of innocence that no reasonable juror would have convicted the
petitioner.” See id. at 191 (citations omitted). All three of these factors are
necessary for a habeas corpus petitioner to be entitled to relief under the actual
innocence exception. See id. And if ultimately proven, this exception “serves as a
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gateway through which a petitioner may pass” even though the statute of
limitations has expired. See McQuiggin, 569 U.S. at 386.
Accordingly, in order for Petitioner to demonstrate that he is entitled to pass
through this gateway exception based upon his actual innocence, he is required to
establish as a factual matter that, in light of new reliable evidence, no juror acting
reasonably would have found him guilty of the crimes for which he was convicted.
The court, having carefully reviewed this matter, ultimately finds that Petitioner
has not made this threshold showing. In fact, from what the court can discern,
Petitioner has not asserted actual innocence, much less shown actual innocence.
(Doc. 9.) Thus, for all of these reasons, the court concludes that Petitioner has not
met his burden of proof that he is entitled to relief under the actual innocence
exception. See House v. Bell, 547 U.S. 518, 538 (2006) (stating that “it bears
repeating that the Schlup standard is demanding and permits review only in the
extraordinary case” (citations omitted)).
Therefore, the petition is untimely, not subject to sufficient tolling, and will
be dismissed.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a
certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
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has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). “When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Here, jurists of reason would not find the procedural disposition of this
case debatable. Accordingly, no COA will be issued.
CONCLUSION
For the above stated reasons, the petition filed pursuant to Section 2254 will
be dismissed as untimely and the case will be closed.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: October 14, 2026
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