Opinion
Civil Action No. 04-1544.
October 27, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Jainath Maraj ("Maraj"), an individual currently incarcerated in the Coal Township State Correctional Institution. For the reasons that follow, I recommend that the petition be dismissed.
Maraj is known as "Jainath Gonzales" in state court records.
FACTS AND PROCEDURAL HISTORY :
On October 6, 1993, Maraj, his younger brother, and their uncle spent the afternoon drinking, smoking PCP, and taking other drugs. At approximately 6 p.m., Maraj drove his co-conspirators to the home of Jose Santiago to buy more drugs. Maraj waited in the car while his cohorts went into Mr. Santiago's house. Mr. Santiago would not sell the cohorts the drugs, and subsequently fled his home. One of the conspirators followed Mr. Santiago out of the house and began shooting at him, as well as into a crowd on the sidewalk. When two (2) police officers approached the shooter, he began firing at them. The shooter then entered the back seat of Maraj's car, and Maraj drove the vehicle away. During a high-speed chase during rush hour traffic, the shooter in Maraj's vehicle fired shots at the police vehicles that were following. Maraj drove his vehicle on a one- (1-) way street in the wrong direction, and the vehicle ultimately was blocked by an oncoming vehicle. Maraj and his cohorts fled on foot while the shooter continued shooting at the police. All three individuals were later arrested.
On August 18, 1994, a jury sitting before the Honorable Gary S. Glazer, Court of Common Pleas of Philadelphia County, convicted Maraj of four (4) counts of aggravated assault and one (1) count each of criminal conspiracy, reckless endangerment, possessing an instrument of crime, and carrying a firearm without a license. On November 21, 1994, Judge Glazer sentenced Maraj to an aggregate sentence of thirteen and a half (13½) to twenty-seven (27) years of imprisonment. Maraj did not file a direct appeal.
On June 10, 1996, Maraj filed his first petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq., seeking to have his direct appeal rights reinstated. On July 31, 1998, Maraj was granted permission to file a direct appeal nunc pro tunc.
Maraj filed a direct appeal in the Pennsylvania Superior Court claiming:
(1) trial counsel was ineffective for failing to bring to the attention of the Juvenile Court the fact that he was under the influence of drugs and alcohol at the time of the commission of the crimes at issue;
(2) the Juvenile Court committed an abuse of discretion by failing to adequately consider the factors enunciated under the Juvenile Act;
(3) trial counsel was ineffective for failing to call Maraj's younger brother as a witness to rebut the criminal accusations and to disprove accomplice culpability and conspiracy;
(4) trial counsel was ineffective for failing to request that the trial court distinguish an accomplice from an accessory after the fact in its charge to the jury;
(5) trial counsel was ineffective for failing to raise a prompt objection to the charge on accomplice liability; and
(6) trial counsel was ineffective for failing to request a clarification on accomplice liability for each charge.
The Superior Court affirmed the judgment of sentence on February 24, 2000. Commonwealth v. Gonzales, 754 A.2d 17 (Pa.Super. 2000) (table); No. 2681 EDA 1998 (Pa.Super. Feb. 24, 2000) (unpublished memorandum). On June 22, 2000, Maraj filed a nunc pro tunc application for re-argument, which was denied by the Superior Court. On July 26, 2000, Maraj filed an untimely petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied on September 26, 2000.
This court confirmed the filing date of Maraj's petition for allowance of appeal in the Pennsylvania Supreme Court via telephone conference with the Philadelphia District Attorney's Office on October 26, 2004.
On March 9, 2001, Maraj filed a second pro se petition for PCRA relief. After counsel was retained, an amended PCRA petition was filed. The PCRA court denied relief on January 3, 2002. Maraj appealed to the Superior Court presenting three (3) claims of ineffective assistance of appellate counsel. On December 2, 2002, the Superior Court affirmed the denial of PCRA relief.Commonwealth v. Gonzales, 817 A.2d 1177 (Pa.Super. 2002) (table); No. 436 EDA 2002, at (Pa.Super. Dec. 2, 2002) (unpublished memorandum). The Pennsylvania Supreme Court denied Maraj's petition for allowance of appeal on September 17, 2003.
On February 11, 2004, Maraj filed a third PCRA petition alleging that his sentence was "illegally duplicitous." On August 19, 2004, the PCRA court dismissed Maraj's petition as untimely. Maraj is currently appealing that decision in the state courts.
Pursuant to the amended PCRA, effective January 16, 1996, collateral actions must be filed within one (1) year of the date the conviction at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b)(1).
On March 25, 2004, Maraj filed the instant petition for a federal writ of habeas corpus claiming:
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)). Maraj signed his original habeas petition on March 25, 2004; therefore, we will assume that he presented his petition to prison authorities on that date.
(1) trial counsel was ineffective for failing to call Rajin Maraj as a witness at trial;
(2) trial counsel was ineffective for failing to object to improper jury instructions;
(3) trial counsel was ineffective for failing to prepare Petitioner for trial; and
(4) imposition of an "illegally duplicitous sentence."
Respondents have filed an answer asserting that Maraj is not entitled to federal habeas relief because the instant petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").
DISCUSSION :
I. Statute of Limitations
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). Maraj's conviction became final on March 25, 2000, thirty (30) days after the Pennsylvania Superior Court denied his nunc pro tunc direct appeal. Therefore, Maraj would normally have had until March 24, 2001, to timely file his § 2254 petition.
I find that Maraj's nunc pro tunc application for re-argument in the Pennsylvania Superior Court and subsequent untimely petition for allowance of appeal in the Pennsylvania Supreme Court do not impact my calculations regarding the date on which Maraj's conviction became "final." See Douglas v. Horn, 359 F.3d 257, 262 (3d Cir. 2004) (noting that time during whichnunc pro tunc request for allowance of appeal is pending does not toll statute of limitation); see also Swartz v. Meyers, 204 F.3d 417, 423 n. 6 (3d Cir. 2000) (stating in dicta "the time during which [Petitioner's] nunc pro tunc request for allowance of appeal was pending does not toll the statute of limitation"); see generally Brown v. Shannon, 322 F.2d 768, 775 n. 5 (3d Cir. 2003). In support thereof, I note that Maraj's request for re-argument in the Superior Court was filed on June 22, 2000, more than three (3) months after the Superior Court issued its decision, even though such a request is to be filed within fourteen (14) days after entry of an order. See Pa.R.A.P. 2542. In a similar manner, Maraj filed his petition for allowance of appeal in the Pennsylvania Supreme Court on July 26, 2000, more than five (5) months after the Superior Court issued its decision, despite the fact that such a petition is to be filed within thirty (30) days of the entry of an order by the Superior Court. See Pa.R.A.P. 1113. Both of these applications for permission to file untimely appeals were denied by the state courts.
However, on March 9, 2001 — 350 days into his one (1) year federal statute of limitations — Maraj filed his second PCRA petition. Because this petition was filed in accordance with Pennsylvania's procedural requirements, it is considered a "properly filed application" for post-conviction relief, thereby tolling the one (1) year limitation period. See 28 U.S.C. § 2254(d)(2) (the time during which a "properly filed application" for state post-conviction review is pending shall not be counted toward the one (1) year period of limitation); Artuz v. Bennett, 531 U.S. 4 (2000) ("an application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings" such as "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"). Such a petition is considered "pending" within the meaning of § 2244(d)(2) during the time a state prisoner is pursuing his state post-conviction remedies, including the time for seeking discretionary review of any court decisions whether or not such review was actually sought. See Swartz, 204 F.3d at 424. Maraj's petition was thus pending until September 17, 2003, when the Pennsylvania Supreme Court denied his petition for allowance of appeal. At this time, the one (1) year grace period began to run again and Maraj had 15 days, or until October 3, 2003, to file a timely § 2254 petition.
The ninety (90) day period during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the AEDPA limitations period. Stokes v. District Att'y of the County of Phila., 247 F.3d 539, 543 (3d Cir. 2001).
Maraj submitted the instant motion for filing on March 25, 2004, over five (5) months after the limitation period had expired on October 3, 2003. He does not assert 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, Maraj would be barred from presenting his claims under § 2254, unless the instant petition is subject to equitable tolling.
On February 11, 2004, Maraj filed his third PCRA petition. This petition would not toll the federal statute of limitations because it was filed after the federal statute of limitations had already expired. Consequently, the time during which this appeal is pending would not impact this court's calculations regarding the one (1) year limitation period.
Indeed, Maraj does not specifically address the federal statute of limitations or present any arguments in relation thereto.
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 Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1988). Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Id. (citation omitted). "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). The Third Circuit has set forth three (3) circumstances in which equitable tolling is justified: (1) if 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, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted). "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."Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
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. Maraj presents us with no evidence that he either diligently pursued his claims or was prevented in some extraordinary way from doing so. Because Maraj 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. Consequently, Maraj's petition must be dismissed as untimely.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of October, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus 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 ____, 200_, 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 filed thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.