Opinion
Civil Action No. 04-0411.
January 4, 2005
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, this court recommends that the petition be dismissed because it is barred by the one-year statute of limitations for the filing of a habeas corpus petition.
I. BACKGROUND
On March 21, 1973, a jury sitting in the Court of Common Pleas for Philadelphia County, convicted petitioner of first-degree murder and aggravated robbery. (Phila. C.P. No. 7112-1034). On August 8, 1973, the trial court sentenced petitioner to serve ten to twenty years imprisonment concurrent to his mandatory sentence of life imprisonment for murder. The Pennsylvania Supreme Court affirmed the judgment of sentence in a published opinion dated October 16, 1974. Commonwealth v. Johnson, 327 A.2d 632 (Pa. 1974).
On January 5, 1981, petitioner filed a petition for collateral relief pursuant to the Post Conviction Hearing Act ("PCHA"). The PCHA court denied the petition. However, the Superior Court reversed, vacating the judgment of sentence and ordering a new suppression hearing and trial. Commonwealth v. Johnson, 495 A.2d 612 (Pa.Super.Ct. 1985) (table). The Supreme Court of Pennsylvania reversed the Superior Court's order and reinstated the judgment of sentence. Commonwealth v. Johnson, 532 A.2d 796 (Pa. 1987).
On April 21, 1997, petitioner filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. (No. 97-CV-2703.) In a Report and Recommendation dated November 7, 1997, the Honorable Arnold C. Rapoport recommended that the petition be dismissed as meritless. On January 29, 1998, the District Court adopted the Report and Recommendation. The Third Circuit Court of Appeals affirmed the dismissal on August 31, 2000. (C.A. No. 98-1151.)
On April 27, 2000, petitioner filed a second petition for collateral relief in the state court. At the time of the second filing, the PCHA had been replaced by the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. On January 11, 2002, the PCRA court dismissed the petition as untimely. The Superior Court affirmed the dismissal in a memorandum opinion dated December 16, 2002. Commonwealth v. Johnson, 817 A.2d 1179 (Pa.Super.Ct. 2002). The Supreme Court of Pennsylvania denied allocatur on August 27, 2003.Commonwealth v. Johnson, 831 A.2d 599 (Pa. 2003).
On November 20, 2003, petitioner filed an application in the Third Circuit Court of Appeals for permission to file a successive habeas petition. On December 23, 2003, the Court of Appeals granted the application, directing petitioner "to focus the petition primarily on the allegation that the District Attorney's Office failed to disclose the arguably favorable evidence that King asserted before the Board of Pardons that he was threatened by the prosecutor if he testified and that, in an interview with an agent from the Pennsylvania Board of Probation and Parole, King had asserted that Johnson was innocent of murder." In re Vincent Johnson, C.A. No. 03-4297. Petitioner filed the instant pro se habeas petition on January 29, 2004 stating ten grounds for relief. (Petition ¶ 12.) By order dated September 22, 2004, the petition was referred to the undersigned for a Report and Recommendation.
On December 22, 2004, the District Attorney for Philadelphia County filed a response in which he argued that the petition should be dismissed as untimely because it was not filed within the one-year statute of limitations as required by 28 U.S.C. § 2244. II. DISCUSSION
By order dated November 23, 2004, the court granted Respondents' request for an extension of time to file their response to the petition and allowed the response to be filed on or before December 20, 2004. (Doc. No. 13.) Petitioner objected to this request and, on December 10, 2004, filed a Motion for Entry of Default with the court. (Doc. No. 14.) Respondents filed their Response on December 22, 2004 (Doc. No. 15) along with a motion for an extension of time to file the Response. (Doc. No. 16.) By order dated December 22, 2004, this court granted Respondents' request and extended the deadline for filing the Response until December 22, 2004. (Doc. No. 17.) Petitioner's Motion for Entry of Default (Doc. No. 14) should be denied.
The fact that the Third Circuit Court of Appeals granted petitioner's application to file a successive petition does not negate the application of the federal habeas statute of limitations set forth in 28 U.S.C. § 2244(d). See Robinson v. Johnson, 313 F.3d 128, 137-39 (3d Cir. 2002) (state did not waive AEDPA statute of limitations defense when it did not raise the defense when it challenged petition as unauthorized successive petition), cert. denied, 540 U.S. 826 (2003);Woods v. Brennan, 2001 WL 1428343, at *1 (E.D. Pa. Nov. 9, 2001) (rejecting petitioner's contention that the AEDPA statute of limitations did not apply to successive petitions).
Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), creates a one-year time limit for filing a habeas corpus petition and in relevant part provides:
(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.
(2) The time during which a properly filed application for State postconviction 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). See generally Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944 (2001); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998).
Petitioner's conviction became final on January 14, 1975 when the time for seeking certiorari in the United States Supreme Court expired. See Sup. Ct. R. 13; Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999) (if a defendant does not file a certiorari petition, a judgment of conviction does not become "final" until time for seeking certiorari review expires). Because the conviction became final before the April 24, 1996 effective date of the AEDPA, petitioner was granted a one-year grace period, or until April 23, 1997 to seek federal habeas review. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Petitioner did not file the instant habeas petition until January 29, 2004, almost seven years after the deadline.
28 U.S.C. § 2244(d)(1)(A) provides that the statute of limitations runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." With respect to the claims asserted in the petition, see infra n. 4, none of the other possible "start dates" listed in § 2244(d)(1)(B)(C) and (D) apply here. Moreover, petitioner's prior habeas petition did not toll the AEDPA statute of limitations, see Duncan v. Walker, 533 U.S. 167 (2001), nor did his untimely second PCRA petition which, in any event, was filed more than three years after the AEDPA statute of limitations had expired, see Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir.), cert. denied, 540 U.S. 921 (2003); Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir.), cert. denied, 534 U.S. 944 (2001).
Petitioner has not alleged any facts to suggest that the statute of limitations should be equitably tolled. The Third Circuit has held that the federal habeas statute of limitations is subject to equitable tolling only in extraordinary circumstances. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In Miller, the court stated the following:
[E]quitable tolling is proper only when the principles of equity would make the rigid application of a limitation period unfair. Generally, this will occur when the petitioner has in some extraordinary way . . . been prevented from asserting his or her rights. 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 (interior quotations and citations omitted). Equitable tolling may be found only when: (1) the state has actively misled the petitioner; (2) the petitioner has in some extraordinary way been prevented from asserting his rights; or (3) the petitioner has timely asserted his rights but in a wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). See also Johnson v. Hendricks, 314 F.3d 159, 162 (3d Cir. 2002) (reaffirming the principles of equitable tolling enunciated inJones v. Morton).
Petitioner has not alleged that the Commonwealth of Pennsylvania misled him regarding the required date to file his federal habeas corpus petition. Moreover, petitioner has not alleged that he has "in some extraordinary way" been prevented from asserting his rights. Finally, this is not a case where petitioner timely asserted his rights in the wrong forum.
Petitioner does claim that he is actually innocent of the crimes of which he was convicted. The Third Circuit Court of Appeals has not yet recognized an "actual innocence" exception to the statute of limitations. See Hussman v. Vaughn, 67 Fed. Appx. 667, 669 (3d Cir.) (finding that petitioner had no basis to assert a claim of actual innocence and declining to address issue of whether there is an actual innocence exception to AEDPA's statute of limitations) (not precedential), cert. denied, 540 U.S. 936 (2003); Chhoeum v. Shannon, 219 F. Supp. 2d 649, 654 n. 2 (E.D. Pa. 2002) (noting that Third Circuit has not yet decided the issue); Saunders v. Vaughn, 2004 WL 1490329, at *5 (E.D. Pa. June 30, 2004) (same), report adopted by 2004 WL 2536829 (E.D. Pa. Nov. 9, 2004). One Court of Appeals that has addressed the question has rejected such an exception. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.) (A claim of actual innocence would not constitute a "rare and exceptional" circumstance which would justify the equitable tolling of the limitations period, "given that many prisoners maintain they are innocent."), cert. denied, 531 U.S. 1035 (2000). But see Garcia v. Portuondo, 334 F. Supp. 2d 446, 456, 461 (S.D.N.Y. 2004) (The district court noted that "[w]hether the United States Constitution requires an `actual innocence' exception to the AEDPA one-year statute of limitations on federal habeas petitions is a novel question of constitutional law," but concluded that "the running of the AEDPA statute of limitations is equitably tolled in the exceedingly rare case in which the petitioner makes out a credible claim of actual innocence.").
This court need not predict whether the Supreme Court or the Third Circuit Court of Appeals would reject or accept an actual innocence exception to the AEDPA statute of limitations. Even if there were an actual innocence exception to the AEDPA statute of limitations, petitioner must have exercised reasonable diligence in bringing his claim of actual innocence before the statute of limitations expired. See Workman v. Bell, 227 F.3d 331, 342 (6th Cir. 2000) ("Thus, if a prisoner purposefully or by inadvertence lets the time run under which he could have filed his petition, he cannot file a petition beyond the statutory time, even if he claims `actual innocence'."), cert. denied, 531 U.S. 1193 (2001). Petitioner's claim of actual innocence is based upon a letter from Larry King to the Pennsylvania Board of Pardons dated September 7, 1996. (Response Ex. 3.) Mr. King stated in his letter that he knew petitioner was innocent of the murder but did not testify on petitioner's behalf at the trial because the prosecutor threatened to charge him with a crime if he did so. Id. Petitioner clearly knew of Mr. King's statements in September of 1996, but made no attempt to exhaust this claim in the state courts until his untimely second PCRA petition filed on April 27, 2000.
Petitioner provided this court with a copy of a Motion for Stay/Abeyance Pending the Outcome of Petitioner's PCRA Petition Filed in January 2004. This document is not reflected on the court docket as having been filed with the court. By separate order, the court will order the Clerk of the Court to file this document with the court. In this motion, petitioner asserts that the testimony of a witness at his trial, Joseph Cole, was false and provided under pressure from his interrogators. Petitioner attached an Affidavit from Mr. Cole in which the affiant states that petitioner robbed the decedent but did not kill him. Petitioner admits that he did not include a claim relating to Mr. Cole's Affidavit in his habeas corpus petition because he did not receive the Affidavit until after he filed the instant petition. As the instant petition contains no claim regarding Mr. Cole, and the federal statute of limitations on any claim relating to Cole's affidavit would run from the date petitioner could have discovered Mr. Cole's changed testimony through the exercise of due diligence, see 28 U.S.C. § 2244(d)(1)(D), the request to stay the petition pending the PCRA proceedings on the Cole claim should be denied since dismissal of this petition will not jeopardize timeliness of a later federal habeas claim based on Mr. Cole's recantation of his testimony. Petitioner asserts that he did not learn of Cole's changed testimony until after November 2003 and, if he filed a timely PCRA petition, the federal statute of limitations would be tolled. See 28 U.S.C. § 2244(d)(2) (timely state post-conviction relief petition tolls statute of limitations while pending). See also Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004) (§ 2244(d), like other statutes of limitations, must be applied on a claim-by-claim basis),petition for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 26, 2004) (No. 04-7115); Crews v. Horn, 360 F.3d 146 (3d Cir. 2004) (stay appropriate course only when outright dismissal would jeopardize timeliness of petition). Furthermore, it appears that petitioner's claim of actual innocence based on the newly discovered evidence is not cognizable under the federal habeas statute because it rests on state, rather than federal, law. It is well established that claims of actual innocence based on newly discovered evidence are never grounds for federal habeas relief absent an independent constitutional violation. Fielder, 379 F.3d at 121.
To the extent that petitioner claims he did not know of Mr. King's statements until September 7, 1996, and through the exercise of due diligence petitioner could not have discovered the factual predicate of this claim sooner, it could be argued that petitioner had one year from September 7, 1996 to file his habeas petition. See 28 U.S.C. § 2244(d)(1)(D). Under this scenario, petitioner would have had until September 6, 1997, instead of April 23, 1997, to file his habeas petition. The instant habeas petition, filed on January 29, 2004, still would have been filed many years past the deadline.
Petitioner attempted to raise this claim in his first federal habeas corpus petition. However, in a Report and Recommendation dated November 7, 1997, the court refused to consider this claim since it had not been raised in the state courts. This Report and Recommendation was adopted on January 29, 1998. Yet, even with this notice, petitioner did not raise this claim in the state courts until April 2000. Petitioner did not exercise reasonable diligence in bringing this claim of actual innocence before the statute of limitations expired. For these reasons, the one-year statute of limitations cannot be equitably tolled.
For all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 4th day of January, 2005, the court respectfully recommends that the petition for a writ of habeas corpus be DISMISSED as time-barred by the statute of limitations, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).