Opinion
Civil Action No. 03-6129.
March 12, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by James Davis ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Dallas, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed.
I. FACTS AND PROCEDURAL HISTORY:
The following facts were determined at trial. Between 3:15 p.m. and 4:15 p.m. on April 18, 1997, officers from the Philadelphia Police Narcotics Field Unit observed Petitioner and his co-defendant engage in three (3) apparent drug deals. Police arrested Petitioner and recovered four (4) packets of crack cocaine.
A jury trial, presided over by the Honorable Eugene Maier, was held on July 20, 1998 and July 21, 1998 in the Court of Common Pleas, Philadelphia, Pennsylvania. On July 21, 1998, the jury found Petitioner guilty of possession with intent to deliver and criminal conspiracy. Petitioner was sentenced to ten (10) to twenty (20) years for possession with intent to deliver, and a consecutive sentence of five (5) to ten (10) years for criminal conspiracy.
Petitioner appealed his conviction and sentences to the Pennsylvania Superior Court, which affirmed on May 31, 2000.Commonwealth v. Davis, 760 A.2d 424 (Pa.Super. 2002) (table). Petitioner did not request allocatur from the Pennsylvania Supreme Court.
On October 4, 2000, Petitioner filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq. The Honorable D. Webster Keogh dismissed the PCRA petition on October 17, 2001. On December 9, 2002, the Superior Court affirmed the dismissal. Commonwealth v. Davis, 817 A.2d 1175 (Pa.Super. 2002) (table).
The Honorable Barbara A. Joseph appointed Peter A. Levin, Esquire, as Petitioner's counsel. Mr. Levin filed an amended petition on January 23, 2001.
On March 5, 2003, Petitioner's counsel filed a petition seeking leave to file a petition for allowance of appeal nunc pro tunc. On August 25, 2003, the Pennsylvania Supreme Court issued an Order denying the application for permission to file.
On October 31, 2003, Petitioner filed the instant pro se petition for writ of habeas corpus. Respondents filed an answer on February 3, 2004, asserting that the petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). On February 14, 2004, Petitioner filed a traverse to the Respondents' answer. On March 4, 2004, Respondents filed a response to Petitioner's traverse.
Generally, a pro se petitioner's habeas petition is deemed filed at the moment he delivers it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). Although the habeas petition was docketed on November 7, 2003, Petitioner signed his original habeas petition on October 31, 2003; therefore, we will assume that he presented his petition to prison authorities on October 31, 2003.
II. DISCUSSION:
Section 101 of the AEDPA, effective April 24, 1996, amended habeas corpus law by imposing a one (1) year limitation period to applications for writ of habeas corpus filed by persons in state custody. 28 U.S.C.A. § 2244(d)(1). Section 2244, as amended, provides that the one (1) year 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). The amended statute also provides that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).
In the instant case, the applicable starting point for the statute of limitations is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000). On direct appeal, the Pennsylvania Superior Court affirmed the judgment of sentence on May 31, 2000, and Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. Therefore, Petitioner's conviction became final on June 30, 2000, when the time allowed for filing a discretionary appeal with the Pennsylvania Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Petitioner would normally have had until June 30, 2001, to timely file his § 2254 petition.
A. Statutory Tolling
On October 4, 2000, Petitioner filed a PCRA petition. By that time, approximately 96 days of the one-(1-)year limitations period had run. Because the PCRA petition was "properly filed," it tolled the limitations period during the period in which it was "pending." See 28 U.S.C. § 2244(d)(2). Petitioner's PCRA application was pending from October 4, 2000, until December 9, 2002, when the Pennsylvania Superior Court affirmed the dismissal of Petitioner's PCRA petition. Petitioner then had one (1) month to file a request for review in the Pennsylvania Supreme Court, which he failed to do. As a result, the limitations period resumed its countdown on January 9, 2003, at which time Petitioner had approximately 269 days, or until October 4, 2003, to file a timely § 2254 petition.
On March 5, 2003, Petitioner filed a petition seeking leave to file a petition for allowance of appeal nunc pro tunc, which was denied by the Pennsylvania Supreme Court on August 25, 2003. However, the Third Circuit has recently made clear that Petitioner's nunc pro tunc did not toll the AEDPA statute of limitations because it was not "properly filed."See Douglas v. Horn, 2004 WL 231207 (3d Cir. 2004); Fahy v. Horn, 240 F.3d 239, 242 (3d Cir. 2001); Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999); Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). Rule 903 of the Pennsylvania Rules of Appellate Procedure requires that all appeals "shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. Rule 903(a). Under the AEDPA, an improperly filed appeal cannot act to toll the statute of limitations in a case. See 28 U.S.C. § 2244(d)(2); Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364 (2000) (stating that a "properly filed" application is in compliance with other applicable laws and rules governing filings, including restrictions on time limits). Finally, in Douglas, the Third Circuit unequivocally held that the " nunc pro tunc petition was not properly filed and thus did not toll the clock." Douglas, 2004 WL 231207, *4.
Moreover, Petitioner has never filed a petition for allocatur, even an untimely petition, but instead filed only a petition for leave to file the allocatur. Therefore, an appeal was not pending in state court, even after the petition for leave was filed. See 28 U.S.C. § 2244(d)(2) (statutory tolling is appropriate when a properly filed application for state collateral review is pending).
Because the nunc pro tunc petition did not toll the AEDPA, the one (1) year grace period began to run on January 9, 2003, and Petitioner had 269 days, or until October 4, 2003, to file a timely § 2254 petition.
However, Petitioner filed the instant, pro se petition for writ of habeas corpus on October 31, 2003 — almost one (1) month after the expiration of the one-(1-)year limitation period. Petitioner does not assert, nor do any of his claims suggest, that there has been an impediment to filing his habeas petition which was caused by state action; that his petition involves a right which was newly recognized by the United States Supreme Court; or that there are new facts which could not have been previously discovered. See 28 U.S.C. § 2244(d)(1)(B)-(D). Consequently, Petitioner would be barred from presenting his claims under § 2254, unless the instant petition is subject to equitable tolling.
B. Equitable Tolling
The Third Circuit has determined that the one (1) year period of limitation for § 2254 is subject to equitable tolling because this limitation period is a statute of limitations and not a jurisdictional bar. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (in considering a motion for extension of time to file petition for writ of habeas corpus, district court must apply equitable principles in applying the one (1) year limitation period). Equitable tolling is proper only when "the principles of equity would make [the] rigid application [of a limitation period] unfair." Id. at 618 (quoting Shendock v. Director, Office of Workers' Compensation Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (en banc)). Generally, "this will occur when the petitioner has `in some extraordinary way . . . been prevented from asserting his or her rights.'" Id. (quoting Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380 (3d Cir. 1984)). "The petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims.' . . . Mere excusable neglect is not sufficient." Id. at 618-19 (citations omitted). As the Third Circuit has explained, equitable tolling "may be appropriate if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has `in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum."Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (quotingUnited States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). Thus, "a statute of limitations should be tolled only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice." Id.
Petitioner argued in his petition seeking leave to file petition for allowance of appeal nunc pro tunc that Petitioner should have been allowed to file an appeal because counsel did not learn of the Pennsylvania Superior Court's December 9, 2002, denial of Petitioner's PCRA petition until February 28, 2003, when counsel received a telephone call from Petitioner's cousin. See Resp.'s Br. at Exhibit D. I disagree. As an initial matter, the Pennsylvania Superior Court sent notice of its unfavorable decision to Petitioner's counsel. As a result, it does not appear that the purported late notification can be blamed on the state court.
Although Petitioner did not raise this argument before this Court, I deem it necessary to discuss the issue in the context of equitable tolling.
Petitioner's counsel stated that he called the Superior Court and learned that a decision had been issued and sent to Petitioner's counsel. Petitioner's counsel also asserts that he did not receive the decision until March 4, 2003. See Resp.'s Br. at Exhibit D.
Even assuming, arguendo, that the Pennsylvania Superior Court failed to send notification, there are a number of reasons why I find that any such late notification would not rise to the level necessary for equitable tolling. First, attorney error does not constitute an "extraordinary circumstance." See Fahy, 240 F.3d at 244 ("In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling"). Here, privately-retained counsel apparently waited more than two (2) years to check on the status of Petitioner's PCRA petition and, as a result, counsel learned of the unfavorable decision of the Pennsylvania Superior Court more than two (2) months after the court denied the petition. Because counsel could have learned of the denial at any time, equitable tolling is not appropriate. See Fahy, 240 F.3d at 244; see also Poller v. Kyler, 2003 WL 22025882, at *2 (E.D. Pa. 2003) (holding attorney failure to timely notify habeas petitioner of state court decision is not basis for equitable tolling).
Second, in order to obtain equitable tolling, a petitioner must demonstrate that an "extraordinary circumstance" — assuming one existed — actually prevented him from filing his habeas petition on time. See Miller, 145 F.3d at 618. Here, the late notification did not actually prevent Petitioner from filing his habeas petition because, at the time defense counsel learned of the Pennsylvania Superior Court's unfavorable decision, there were still approximately 218 days remaining for Petitioner to file a timely habeas petition. Because this constituted more than enough time to file the petition, equitable tolling is not appropriate. Moreover, to the extent that counsel miscalculated the AEDPA limitation period, or erroneously believed that the nunc pro tunc petition tolled the AEDPA, such ordinary attorney error does not trigger equitable tolling for the reasons previously discussed.
Third, as previously explained, a petitioner seeking equitable tolling must also show "that he or she exercised reasonable diligence in investigating and bringing [the] claim." Miller, 145 F.3d at 618-619. Here, Petitioner apparently never checked the status of his appeal on his own, nor did he make any efforts to ensure that his habeas petition was timely filed after counsel learned of the state court's unfavorable decision. As a result, it cannot be said that Petitioner diligently pursued his appellate rights. See Carter v. Vaughn, 2002 WL 1565229, at *3 (E.D. Pa. 2002) (stating prisoner did not act diligently by waiting over one (1) year to check on status of appeal); Ayala v. Superintendent, 2002 WL 207173, at *1 (E.D. Pa. 2002) (holding petitioner did not act diligently even though he sent four (4) letters to court). Therefore, equitable tolling is not warranted for this additional reason.
For all of the aforementioned reasons, I do not find the instant matter to be one of "rare situation[s] where equitable tolling is demanded by sound legal principals as well as the interests of justice." See Jones, supra. Because Petitioner has not established "extraordinary" circumstances which would justify application of equitable principles, this court finds that there are no circumstances which would make the rigid application of the limitation period unfair. Accordingly, Petitioner's petition should be dismissed as untimely.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of March, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.