Opinion
Civil Action No. 04-1174.
June 16, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a counseled Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Petitioner, Anthony Boykins, is currently incarcerated at the State Correctional Institution at Rockview, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice and without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, and all attachments to those pleadings.
Following a bench trial before the Honorable Lisa A. Richette in the Court of Common Pleas of Philadelphia County, Petitioner was found guilty of third degree murder and possession of an instrument of crime on June 3, 1998. Judge Richette sentenced Petitioner to an aggregate term of ten to twenty years' imprisonment on July 23, 1998. No direct appeal was filed.
On August 21, 1998, Petitioner filed a counseled petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA").See 42 Pa. C.S.A. § 9541. His privately retained counsel, A. Charles Peruto, Jr., then filed a memorandum of law and supplement in support of the PCRA petition. Judge Richette, as the PCRA judge, dismissed the PCRA petition on January 12, 2000. Petitioner did not file an appeal of this decision.
Petitioner contends that he retained Attorney Peruto to file a direct appeal on his behalf, and instead, counsel filed a PCRA petition.
Petitioner filed his second counseled PCRA petition on January 22, 2002. The PCRA court dismissed this second petition as time-barred on November 12, 2002, and the Superior Court affirmed the dismissal in a memorandum opinion on January 16, 2004. Resp., Ex. A; Commonwealth v. Boykins, No. 3471 EDA 2002 (Pa.Super. Jan. 16, 2004).
On March 18, 2004, Petitioner filed a petition for writ of habeas corpus in this Court. The case was assigned to the Honorable Norma L. Shapiro, who ordered the Clerk of Court to furnish Petitioner with a current form for filing a petition on March 29, 2004. Petitioner's counsel signed the instant Petition in his behalf on April 12, 2004, and the revised habeas forms were filed on April 16, 2004. Judge Shapiro referred this case for preparation of a Report and Recommendation on May 11, 2004.
The Petition seeks the following relief: (1) the grant of a writ of habeas corpus directed to the Superior Court of Pennsylvania allowing a direct appeal of his judgment of sentencenunc pro tunc because at all times previously he was denied the effective assistance of direct appeal counsel, asking this Court to order the Pennsylvania Superior Court to review his untimely PCRA petition; and (2) the statute of limitations in this action should be equitably tolled because (a) Petitioner lost his direct appeal rights through fraud and ineffective assistance of sentencing and direct appeal counsel involuntarily waiving his direct appeal rights in filing a frivolous pleading and in communicating false information to Petitioner and his family thereby allowing a critical thirty day appeal window to lapse, (b) the Pennsylvania appellate courts have adopted so rigid an application of the state statute of limitations for collateral actions that the Pennsylvania appellate courts are precluded from affording relief to Petitioner because his state court collateral actions were denied as time-barred even though such finding is solely due to counsel's constitutionally ineffective assistance of counsel, and (c) Petitioner bears no responsibility for allowing the time to lapse under the applicable statute of limitations, "as he did not do so knowingly, intelligently, and voluntar[il]y, and thus the statute of limitations in this case should be equitably tolled." (Pet. at 9-10A.) Respondents deny that Petitioner is entitled to relief, and contend that the Petition is time-barred and equitable tolling is inapplicable.
II. DISCUSSION.
Petitioner's case must be decided pursuant to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996. Pub.L. 104-132, 110 Stat. 1214. Section 104(2) of the AEDPA amended 42 U.S.C. § 2254, and requires that federal courts give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C. § 2244 to require that:
(d)(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 the 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 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). If direct review of a criminal conviction ended after the AEDPA's effective date, the limitations period begins to run on the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). In this case, Petitioner's convictions became final on August 23, 1998, when the time for appealing his judgments of conviction to the Pennsylvania Superior Court expired. Thus, his deadline for timely filing a federal habeas petition was August 23, 1999.
There is an exception in the habeas statute for "[t]he 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 subsection." 28 U.S.C. § 2244(d)(2). Petitioner's first PCRA petition, filed on August 21, 1998, was pending until January 12, 2000. Thus, the statute of limitations was tolled until February 12, 2000, when the time for appealing the dismissal of that petition to the Superior Court ended. See Swartz v. Meyers, 204 F.3d 417, 418 (3d Cir. 2000) (holding PCRA petition is pending during time between lower court ruling on petition and expiration of time for seeking review, even though petitioner does not actually seek such review). Beginning on February 12, 2000, Petitioner had one year to timely file his habeas petition. Petitioner's second PCRA petition, because it was time-barred, cannot be considered properly filed, and therefore the time during which that petition was pending cannot be included in the tolling period. Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir.), cert. denied, 124 S.Ct. 317 (2003). Petitioner filed the instant counseled Petition on March 18, 2004, over three years following his filing deadline. Thus, the Petition is time-barred.
Even if the time during which Petitioner's second PCRA petition was pending is added to the time computation for tolling of the statute of limitations, the instant Petition is still time-barred.
Petitioner argues that the doctrine of equitable tolling is applicable in his case. "[E]quitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.'" Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (quoting Shendock v. Dir., Ofc. of Workers' Comp. Programs, 893 F.2d 1458, 1462-1464 (3d Cir.), cert. denied, 498 U.S. 826 (1990)). The Petitioner "must show that he . . . `exercised reasonable diligence in investigating and bringing [his] claims.' Mere excusable neglect is not sufficient." Id. at 618-619 (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) and citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)).
The United States Court of Appeals for the Third Circuit has set forth the following three circumstances in which equitable tolling is permitted: (1) if the [Respondent] has actively misled the [Petitioner]; (2) if the [Petitioner] has in some extraordinary way been prevented from asserting his rights, or (3) if the [Petitioner] has timely asserted his rights mistakenly in the wrong forum. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001) (citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted)).
In his Reply to the Respondents' Response, counsel for Petitioner claims that his client seeks only an Order from this Court directing the Pennsylvania Superior Court to review his untimely PCRA petition. Thus, Petitioner seeks restoration of his direct appellate rights through this action, and nothing more. Arguably, Petitioner might be able to claim that the second circumstance for equitable tolling applies to his case, or that he has, in some extraordinary way, been prevented from asserting his rights because Attorney Peruto filed a PCRA petition instead of a direct appeal on his behalf. In support of this theory, Petitioner argues that he "bears no responsibility for allowing the time to lapse under the applicable statute of limitations, `as he did not do so knowingly, intelligently, and voluntar[il]y, and thus the statute of limitations in this case should be equitably tolled.'" Pet. at 10A.
This Court notes, however, that "in a non-capital case, . . . `attorney error, miscalculation, inadequate research, or other mistakes,' do not constitute extraordinary circumstances required for equitable tolling." Traub v. Folio, No. 04-386, 2004 WL 817067, at *3 (E.D. Pa. Apr. 13, 2004) (quoting Fahy, 240 F.3d at 244 and citing Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002) ("an attorney's mistake in determining the date a habeas petition is due" does not constitute an extraordinary circumstance for purposes of equitable tolling),cert. denied, 538 U.S. 1022 (2003)). Petitioner's counsel does not even acknowledge that the instant Petition is time-barred. Rather, he argues only that equitable tolling should apply.
Respondents correctly note, however, that current counsel's purported failure to file a timely appeal cannot be considered an extraordinary circumstance because it is considered "garden-variety neglect." See Resp. at 14 (citing Johnson v. Hendricks, 314 F.3d at 163 (attorney error not "extraordinary");Fahy, 240 F.3d at 244 (same); Poller v. Kyler, No. 02-982, 2003 WL 22025882, at *2 (E.D. Pa. Aug. 26, 2003) (holding attorney failure to notify habeas petitioner of state court decision is not a basis for equitable tolling); Meiggs v. Pinkens, 2000 WL 101245, at *4 (N.D. Cal. 2000) (same)). Based on this case law, Petitioner is not entitled to equitable tolling because he was not prevented in any extraordinary way from asserting his rights.
Petitioner's first counseled PCRA petition was pending for seventeen months until it was dismissed on January 12, 2000. Petitioner did not appeal that dismissal. Rather, he waited an additional two years, until January 22, 2002, to file his second PCRA petition which was dismissed as time-barred. Curiously, and despite this repeated inaction by Petitioner, his counsel now argues that "[t]his now creates a vicious cycle/catch 22 situation where [Petitioner] has lost his appellate rights through no fault of his own, but can not retrieve them through the rigid application of state and federal time bars to his case." Reply at 2. Although counsel argues that Petitioner was in no way at fault for the failure to preserve his appellate rights, there is no evidence that Petitioner pursued any action whatsoever on his own behalf, either while his first PCRA petition was pending, or after the PCRA court denied him relief. Furthermore, Petitioner's failure to pursue any action on his own behalf for the re-institution of his direct appeal rights during the two year period between the denial of his first PCRA petition and the filing of his second PCRA petition, demonstrates a lack of reasonable diligence in investigating and bringing his claims before this Court. Thus, this is one of those situations where none of the factors for tolling have been met.
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2251 should be DENIED and DISMISSED with prejudice. There is no probable cause to issue a certificate of appealability.