Opinion
Civil Action No. 04-2717.
November 12, 2004
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 April 30, 1992, a jury sitting in the Court of Common Pleas for Philadelphia County, convicted petitioner of attempted burglary (Phila. C.P. No. 9112-0599-600). The court sentenced petitioner to eleven and one-half to twenty-three months imprisonment. On May 7, 1993, the Pennsylvania Superior Court affirmed the conviction. Commonwealth v. Wonlah, 631 A.2d 219 (Pa.Super.Ct. 1993) (Table); and, on December 8, 1993, the Pennsylvania Supreme Court denied petitioner's request for discretionary review. Commonwealth v. Wonlah, 637 A.2d 283 (Pa. 1993) (Table).
On May 19, 2004, petitioner filed a petition for collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. On August 23, 2004, the PCRA court dismissed the petition due to lack of standing, explaining that petitioner is no longer subject to sentences for this case. Petitioner apparently did not appeal the dismissal of the PCRA petition.
On June 18, 2004, petitioner filed his petition for a writ of habeas corpus in this court. He raised five grounds for relief.
On November 1, 2004, the District Attorney for Philadelphia County filed a response to dismiss the petition in which she 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
Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, 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 March 6, 1994 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 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 do so until June 18, 2004, more than 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." None of the other possible "start dates" listed in § 2244(d)(1)(B)(C) and (D) apply here.
The one-year statute of limitations is tolled during the time petitioner had pending in the state courts a properly filed PCRA petition. See 28 U.S.C. § 2244(d)(2) (providing that the time during which a "properly filed" petition for collateral relief is pending is not counted toward the one-year statute of limitations). Petitioner's PCRA petition, filed on May 19, 2004, did not toll the statute of limitations, since it was filed long after the grace period already had expired. See Merritt v. Blaine, 326 F.2d 157, 166 (3d Cir.) cert. denied, 125 S.Ct. 317 (2003).
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).
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. Thus, the one-year statute of limitations cannot be equitably tolled.
For all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this ____ day of November, 2004, 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 be granted.