Opinion
CIVIL NO. 1:CV-08-0194.
November 3, 2008
MEMORANDUM
I. Introduction
Robert E. Johnson, III, incarcerated at SCI-Dallas in Dallas, Pennsylvania, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Johnson is challenging his 2004 convictions in the Lycoming County Court of Common Pleas for attempted homicide and possessing an instrument of crime. Johnson pled guilty to both charges, and is currently serving a twelve and a-half to twenty-eight-year term of imprisonment.
Upon initial screening of the petition, the Court sua sponte raised the issue of the timeliness of Johnson's petition and gave the parties the opportunity to respond. After review of the parties' submissions, we will dismiss Johnson's petition as untimely, finding there is no basis for either statutory or equitable tolling of the one-year statute of limitations.
II. Background and Procedural History
On October 11, 2004, Johnson pled guilty to criminal attempt (homicide) and the possession of an instrument of crime in connection with the shooting of Penn College Police Officer Chubb. On October 25, 2004, Johnson was sentenced to twelve and a-half to twenty-eight years' imprisonment. ( See Doc. 9-2 at R. 10, Johnson's Sentencing Order). The sentencing order was docketed on November 5, 2004. ( See Commonwealth v. Johnson, No. CP-41-CR-0000892-2004 (Lycoming C.P.)). No direct appeal was filed. (Doc. 1, Petition).
"R." or "RR." references are to the CM/ECF pagination of the document cited.
The docket sheet in Johnson's criminal matter is available via the Pennsylvania Judiciary's Web Application Portal,http://ujsportal.pacourts.us/default.aspx.
On September 21, 2005, Johnson filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541- 9546. ( See Doc. 9-2 at RR. 13-20, Johnson's PCRA Petition). The trial court, now acting as the PCRA court, denied the petition on June 26, 2006. ( See Doc. 9-2 at RR. 21-22, Order Denying PCRA Petition). The Superior Court of Pennsylvania denied Johnson's appeal on July 10, 2007. (Doc. 9-2 at RR. 27-29, Commonwealth v. Johnson, No. 1177 MDA 2006 (Pa.Super. July 10, 2007)). Johnson did not file a petition for allowance of appeal in the Pennsylvania Supreme Court.
On January 9, 2008, Johnson filed a second pro se PCRA petition. On February 20, 2008, the PCRA court dismissed the petition as untimely. Johnson's appeal of the dismissal of his second PCRA is pending in the Pennsylvania Superior Court. ( See Commonwealth v. Johnson, No. 440 MDA 2008 (Pa.Super.)).
The docket sheet of Johnson's appeal of the denial of his second PCRA is viewable via the Pennsylvania Judiciary's Web Application Portal, http://ujsportal.pacourts.us/default.aspx.
Johnson filed the instant § 2254 petition on January 29, 2008. Johnson raises four claims of relief: (1) ineffective assistance of counsel; (2) involuntary guilty plea; (3) police misconduct during their interview with petitioner; and (4) illegal arrest and prosecution. (Doc. 1, Petition).
In response to this Court's order of April 23, 2008, requesting that the parties address the issue of the timeliness of Johnson's petition, Respondent filed a response seeking dismissal of the petition as untimely. ( See Doc. 9, Brief Requesting Dismissal of Petition for Writ of Habeas Corpus Based upon State of Limitation). Johnson counters that his petition is timely as it was filed within one year of July 10, 2007, the date of the superior court's dismissal of the appeal of his first PCRA petition,. (Doc. 5, Johnson's Response to Question of Timeliness). Johnson further argues that his PCRA appellate counsel, Jay Stillman, failed to promptly notify him of the superior court's decision until August 16, 2007, which prevented him from appealing the matter to the Pennsylvania Supreme Court. (Doc. 11, Response to Respondents' Request for Dismissal of Petition).
Also pending before the court is Johnson's Request for Order of Evaluation of Mental Health (doc. 10). Johnson claims he "has been denied proper treatment and evaluations of his mental health." ( Id.) The documentation he submits in support of his request for a mental health evaluation suggests that in March 2001, prior to his arrest and incarceration, he suffered from poor impulse control and drug and alcohol abuse. (Id. at R. 3). The documents also reveal that Johnson is "a capable, intelligent young man," then diagnosed to be suffering from issues related to his emotional and behavioral instability. (Id. at R. 7).
III. Discussion
Johnson's habeas petition is untimely filed. In relevant part, the statute of limitations to file a section 2254 petition begins to run 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." 28 U.S.C. § 2244(d)(1)(A); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000). The limitations period is tolled for the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (emphasis added); Taylor v. Horn, 504 F.3d 416, 426 (3d Cir. 2007). The one-year filing deadline in 28 U.S.C. § 2244(d)(1) is also subject to equitable tolling. See Schlueter v. Varner, 284 F.3d 69, 75-76 (3d Cir. 2004); Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001).
As no direct appeal was filed in this matter, Johnson's conviction was "final" thirty days after he was sentenced, or November 24, 2004. ( See 42 Pa. C.S. § 9545(b)(3); Pa. R. App. P. 903; Pa. R. Crim. P. 720(a)(3); see also, Doc. 9-2 at R. 35, Commonwealth v. Johnson, No. CR-892-2004 (Lycoming C.P. Jan. 14, 2008), Order denying second PCRA as untimely). The limitations period therefore began to run on that date, and Johnson had until November 25, 2005, to file his federal habeas petition. Johnson filed his habeas petition on January 29, 2008, in excess of two years after that period expired. Hence, unless the time period was statutorily or equitably tolled between those two dates, his petition is untimely. See Jones v Morton, 195 F.3d 153, 158-160 (3d Cir. 1999).
In Pennsylvania, it is the date a defendant's sentence is imposed in open court, and not the date of the docketing of the sentence order, that serves as "the reference point for computing the time for filing post-sentence motions." Commonwealth v. Nahavandian, 954 A.3d 625, 630 (Pa.Super. 2008).
We exclude Thanksgiving Day, a federal holiday.
The limitations period is statutorily tolled during the time a "properly filed application for State post-conviction relief . . . is pending." 28 U.S.C. § 2244(d)(2). The Supreme Court in Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 363-364, 148 L.Ed.2d 213 (2000), defined "properly filed" for state postconviction relief petitions for the purposes of tolling the federal habeas corpus limitations period pursuant to section 2244(d)(2) as follows:
An application is "filed," as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.
(citations and footnote omitted). "Untimely filing, absence of jurisdiction, failure to pay fees, and failure to obtain a requisite certificate of appealability are all examples of flaws going to the application for relief itself . . . which prevent tolling." Satterfield v. Johnson, 434 F.3d 185, 192 (3d Cir. 2006). A federal court cannot challenge a state court's determination that a state postconviction petition was untimely under state law. See Pace v. DiGuglielmo, 544 U.S. 408, 414, 125 S.Ct. 1807, 1812, 161 L.Ed.2d 669 (2005) ("When a postconviction petition is untimely under state law, that is the end of the matter.") (internal quotations omitted).
Three hundred and one days of the federal habeas limitations period ran until Johnson filed his first PCRA petition on September 21, 2005. This stopped the clock but left Johnson with only 64 days of the period remaining once the state courts had adjudicated his PCRA petition. The PCRA court dismissed the petition on June 27, 2006, and the superior court denied Johnson's appeal on July 10, 2007. As no further state-court review was sought, Johnson's limitations period started to run again thirty days after the superior court denied his appeal, or on August 9, 2007. Johnson thus had until October 12, 2007, or 64 days later, to file his federal habeas petition. As noted, however, he filed his petition on January 29, 2008, some three and a-half months later. The petition is thus untimely unless the limitations period is subject to further statutory or equitable tolling.
Unfortunately for Johnson, he gains no statutory-tolling benefit from his second PCRA petition. The PCRA court deemed his second PCRA petition improperly filed. As previously noted, a state postconviction petition found to be untimely under state law does not toll the federal limitations period. See Satterfield, 443 F.3d at 192 (citing Pace, supra). Johnson does have an appeal of that decision pending before the superior court, but the result has no import for our tolling discussion as Johnson filed his second PCRA petition on January 8, 2008, after the federal limitations period had run. Thus, absent equitable tolling, Johnson's petition is time-barred. Horning v. Lavan, 197 Fed. Appx. 90, 93 (3d Cir. 2006).
The United States Supreme Court has not decided whether equitable tolling is available in the context of a federal habeas corpus petition, see Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007), but in assuming that equitable tolling is available, the Court has stated that a litigant bears the burden of establishing two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Lawrence, 549 U.S. at ___, 127 S.Ct. at 1085 (citing Pace, 544 U.S. at 418, 125 S.Ct. at 1814); see also Jones, 195 F.3d at 159 (requiring that plaintiff has "in some extraordinary way" been prevented from asserting his rights).
Johnson suggests two arguments on which to base a finding of equitable tolling. First, Johnson seems to argue that his PCRA appellate counsel's failure to timely notify him of the superior court's denial of his appeal on his first PCRA petition impacted his ability to seek review from the Pennsylvania Supreme Court. But we fail to see how Johnson's inability to seek relief from the Pennsylvania Supreme Court precluded a timely habeas petition.
Second, Johnson suggests he suffers (or suffered) from a mental defect which impaired his ability to file a timely habeas petition. However, we see no evidence of any such impairment in the record. Although mental incompetence is not a per se reason to toll the statute of limitations, where a person's mental deficiency actually affects his ability to file a timely habeas petition, it may constitute extraordinary circumstances justifying equitable tolling. Lake v. Arnold, 232 F.3d 360, 371 (3d Cir. 2000); Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001). In the instant matter, Johnson offers no medical, mental health, classification, housing information or counselor's statements to corroborate his self-diagnosis of mental retardation or incompetency. The documentation proffered suggests that prior to his arrest and incarceration, he suffered emotional problems and had impulse control issues. Nothing Johnson has tendered to the court suggests that he has ever been committed to a licensed forensic psychiatric unit, is housed in a Special Needs Unit, receives ongoing psychotropic medication, or regularly sees a psychologist or other mental health professional during his incarceration. To the contrary, the documentation suggests that Johnson is a "capable, intelligent young man." (Doc. 10 at R. 7). Without some evidence to support his claims of mental illness, Johnson has not demonstrated a causal connection between his proclaimed mental incompetency or mental defect and his ability to file a timely habeas petition. See Bilbrey v. Douglas, 124 Fed. Appx. 971, 973 (6th Cir. 2005) (equitable tolling not found where petitioner "failed to establish a causal connection between her mental condition and her ability to file a timely petition"); Lawrence v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. 2005) (mere allegations of incompetency do not suffice to warrant equitable tolling), aff'd on other grounds, 127 S.Ct. 1079 (2007); Fisher v. Gibson, 262 F.3d 1135, 1145 (10th Cir. 2001) (same).
IV. Conclusion
We will issue an order dismissing Johnson's § 2254 petition as untimely. We will also deny a certificate of appealability, based on the above analysis. However, Petitioner is advised that he has the right for thirty (30) days to appeal our order denying his petition, see 28 U.S.C. § 2253(a); Fed.R.App.P. 4(a)(1)(A), and that our denial of a certificate of appealability does not prevent him from doing so, as long as he also seeks, and obtains, a certificate of appealability from the court of appeals. See Fed.R.App.P. 22(b).
We will issue an appropriate order.
ORDER
AND NOW, this 3rd day of November, 2008, it is ordered that:
1. The petition (doc. 1) for writ of habeas corpus filed under 28 U.S.C. § 2254 is denied as untimely.
2. A certificate of appealability is denied.
3. Johnson's request for Order of Evaluation of Mental Health (doc. 10) is denied.
4. The Clerk of Court is directed to close this case.