Opinion
Civil Action No. 03-6841.
June 4, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at SCI Greene, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed as untimely.
FACTS AND PROCEDURAL HISTORY
Robert Holbrook pleaded guilty before the Honorable Michael R. Stiles to murder generally, robbery, burglary, criminal conspiracy and possessing an instrument of crime. On February 28, 1991, Judge Stiles presided over a non-jury hearing to determine the degree of murder. Following the hearing, Judge Stiles found petitioner guilty of first-degree murder and imposed the mandatory life sentence. On January 22, 1992, after a two-day evidentiary hearing, Judge Stiles denied Petitioner's motion to withdraw his guilty plea and imposed various other sentences on the remaining convictions to be served concurrently to Petitioner's life sentence.
Petitioner filed a direct appeal in Superior Court. On August 9, 1993, Petitioner's claims were rejected as meritless. See Commonwealth v. Holbrook, 629 A.2d 124 (Pa.Super. 1993). On December 14, 1993, the Pennsylvania Supreme Court denied Holbrook's petition for allowance of appeal. See Commonwealth v. Holbrook, 637 A.2d 280 (Pa. 1993). On March 14, 1994, Petitioner's convictions became final, upon the expiration of the ninety day time period to file a petition for writ of certiorari in the United States Supreme Court. See U.S. Sp. Ct. Rule 13.
On December 18, 1996, Holbrook filed a timely pro se petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551, presenting numerous assertions of counsel's ineffectiveness. On August 7, 1997, after counsel filed a Finley letter, the PCRA Court, following its own independent review of the record, dismissed Holbrook's PCRA petition.
On July 27, 1999, after retaining new counsel, Petitioner filed an appeal of the denial of PCRA relief in Superior Court. The Superior Court held Petitioner's claim to be without merit. On May 17, 2000, the Pennsylvania Supreme Court granted Holbrook's petition for allowance of appeal and remanded the case for consideration of Petitioner's ineffectiveness claim. On remand, the PCRA Court found the claim to be meritless.
On August 14, 2002, the Superior Court again affirmed the denial of Petitioner's PCRA relief. See Commonwealth v. Holbrook, 809 A.2d 957 (Pa.Super. 2002). On December 24, 2002, the Pennsylvania Supreme Court denied allocatur. See Commonwealth v. Holbrook, 815 A.2d 631 (Pa. 2002).
Holbrook filed this petition for habeas corpus relief on December 22, 2003. In this petition, Holbrook asserts that: Petitioner was coerced to plead guilty by counsel who promised a verdict of third degree murder; counsel failed to adequately prepare for the "hearing"; Petitioner's confession was coerced; and counsel was ineffective for failing to prepare and advise Petitioner for a guilty plea.
DISCUSSION
Holbrook's petition for writ of habeas corpus was untimely filed pursuant to 28 U.S.C. § 2244. Pursuant to 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), a petition for writ of habeas corpus must be filed within one year of:
(A) the date on which the judgement became final by the conclusion of direct review or the expiration of the time for seeking 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 Unites 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.
Here, on March 14, 1994, Petitioner's convictions became final, when the time for seeking certiorari in the United States Supreme Court expired. See Clay v. United States, 537 U.S. 522 (2003). However, the Third Circuit has determined that any time prior to the enactment date of AEDPA, April 24, 1996, should not be included in the one-year calculation. Burns v. Morton, 134 F.3d 109, 110 (3d Cir. 1998). Therefore, in Holbrook's case, the one-year limitations period began to run on April 24, 1996, and could only be tolled by a "properly filed" petition for post conviction relief.
Holbrook filed a PCRA petition on December 18, 1996, 238 days after the enactment of AEDPA, tolling the limitations period. The limitations period remained tolled until December 24, 2002, when the Pennsylvania Supreme Court denied allocatur in the collateral appeal. At that point, with 127 days left, the limitations period again began to run. Therefore, Holbrook had to file his habeas petition on or before April 30, 2003. Holbrook did not file this petition until December 22, 2003, approximately 8 months late. Therefore, it is untimely.
Although Holbrook did not seek certiorari in the United States Supreme Court, the time during which he could have sought such review does not toll the habeas limitations period. See Stokes v. District Atty. of County of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001) ("the time during which a state prisoner may file a petition for writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year statute of limitations under 28 U.S.C. § 2244(d)(2)"). In fact, the Third Circuit has since held that habeas limitations period is not tolled during the pendency of such a certiorari petition. Miller v. Dragovich 311 F.3d 574 (3d Cir. 2002).
The District Attorney mistakenly calculated this period to expire March 28, 2003.
The only basis upon which we could address Holbrook's petition would be if he established that his is a case deserving of equitable tolling. Equitable tolling is appropriate "when the petitioner has `in some extraordinary way . . . been prevented from asserting his or her rights." Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). The Third Circuit has found that equitable tolling is appropriate in four narrow circumstances: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum; (4) if the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that he had done everything required of him. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). However, equitable tolling is to be invoked "only sparingly," see United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998), and only when the petitioner establishes that he exercised "reasonable diligence" in investigating and bringing the claims. Miller, at 618-619 (3d Cir. 1998 (citing New Castle County v. Haliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997)). Here, Holbrook has not presented any argument that he was prevented from complying with the limitations period and has failed to establish that he exercised diligence in presenting his claims.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 4th day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED AS UNTIMELY. 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, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DISMISSED AS UNTIMELY.
3. There is no basis for the issuance of a certificate of appealability.