Opinion
Civil Action No. 04-2174.
November 15, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Lawrence Alexander ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is currently incarcerated in the State Correctional Institution at Frackville, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing. It is also recommended that Petitioner's outstanding Motion to Amend the Petition should be denied.
This information is taken from the Petition for Writ of Habeas Corpus, the Response thereto, and the exhibits attached to those pleadings.
On April 3, 1990, Petitioner, was convicted by the Honorable Ricardo C. Jackson following a bench trial in the Court of Common Pleas of Philadelphia County of 134 counts of illegally prescribing drugs, 134 counts of prescribing drugs to a person known to be drug-dependent, 98 counts of delivery of a controlled substance, and one count of criminal conspiracy. Judge Jackson denied Petitioner's post-verdict motions, and sentenced Petitioner on October 15, 1990, to twelve to twenty-four years in prison, and prohibited Petitioner from prescribing any controlled substance. The trial court later denied Petitioner's petition to modify his sentence, but granted Petitioner bail pending appeal and ordered him to surrender the deed to his home in Huntingdon Valley, Pennsylvania as security. The trial court also ordered Petitioner to cease practicing medicine in Pennsylvania.
At the time of his conviction on April 3, 1990, Petitioner was fifty-eight years old; at the time of his incarceration on April 2, 1998, he was sixty-five years old, and on November 22, 2004, Petitioner will be seventy-three years of age.
On November 21, 1991, the Superior Court affirmed Petitioner's convictions. See Resp., Ex. A. The Supreme Court of Pennsylvania affirmed the Superior Court on March 5, 1998. See Commonwealth v. Alexander, 708 A.2d 1251 (Pa. 1998). On April 2, 1998, Judge Jackson conducted a bail revocation hearing and found that Petitioner's bail should be revoked and ordered Petitioner to begin serving his sentence eight years following his conviction. Thus, Petitioner is currently serving the sixth year of his minimum twelve year sentence.
Petitioner contends in his Petition that he has filed an Application and Petition for Writ of Habeas Corpus in the Pennsylvania Supreme Court, and that such Application and Petition are pending. (Pet., p. 11.) Petitioner also contends that he has filed an application for extraordinary relief in the Supreme Court of Pennsylvania docketed at No. 73 E.M. 2004. (Mem. Law in Supp. Pet., p. 1). Respondents represent that they have researched this issue and have no knowledge of anything filed by Petitioner in the state courts following the bail revocation hearing. This Court's law clerk has performed an independent electronic search of the Appellate Court Web Docket Sheets available to the public at the website of the Administrative Office of Pennsylvania Courts. This search failed to reveal that any Application and Petition for Writ of Habeas Corpus or Application for Extraordinary Relief have been filed or adjudicated in the Supreme Court of Pennsylvania under either Petitioner's name or the docket number provided by Petitioner. Accordingly, this Court concludes that Petitioner has exhausted his state court remedies.
On May 5, 2004, Petitioner filed the instant pro se habeas Petition containing one claim, that his conviction resulted from ineffective assistance of trial and appellate counsel. Petitioner specifically contends that:
counsel's performance was constitutionally deficient, in that there was a lack of preparation for the trial; there was inadequate discovery made or sought; there was a failure to challenge the validity of the wiretap authorization based upon facts that may have demonstrated the authorization to be not authentic; there was a failure to argue on appeal that the evidence was insufficient to support the essential element of "possession," counsel failed to pursue petitioner's assertion that certain documents or records essential to the Commonwealth's case were forged.See Pet., p. 9. On June 9, 2004, the Honorable Eduardo C. Robreno referred this case for preparation of a Report and Recommendation. Respondents contend that the Petition is time-barred, and should be dismissed with prejudice.
II. DISCUSSION.
Petitioner's case must be decided pursuant to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996. Pub.L. 104-132, 110 Stat. 1214. Section 104(2) of the AEDPA amended 42 U.S.C. section 2254, the statute under which this Petition was filed, requires that federal courts give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C. section 2244 to require that:
(d)(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.28 U.S.C. § 2244(d)(1). In this case, Petitioner's convictions became final on or about June 3, 1998, ninety days following March 5, 1998, when the Supreme Court of Pennsylvania affirmed Petitioner's judgment of sentence on direct appeal. Because Petitioner did not file a timely PCRA petition, 28 U.S.C. section 2244(d)(2) is inapplicable. See Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003). The instant Petition was not signed until May 5, 2004, and was not filed in this Court until May 19, 2004, almost six years after the statute of limitations had run. Because Petitioner never filed a motion for state post-conviction or other collateral review, the AEDPA statute of limitations was not tolled pursuant to 28 U.S.C. § 2244(d)(2).
Petitioner erroneously calculated his judgment of sentence as becoming final on or about June 2, 1999. See Mem. in Supp. Pet., p. 1.
Petitioner argues that the AEDPA statute of limitations should be equitably tolled. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 124 S.Ct. 48 (2003) (citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998) (citation omitted)). The United States Court of Appeals for the Third Circuit has held that "equitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.'" Miller, 145 F.3d at 618 (quoting Shendock v. Dir., Ofc. of Workers' Comp. Programs, 893 F.2d 1458, 1462 (3d Cir.) (en banc), cert. denied, 498 U.S. 826 (1990)). The Petitioner "must show that he . . . `exercised reasonable diligence in investigating and bringing [his] claims.' Mere excusable neglect is not sufficient." Id. (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) and citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). The Third Circuit has set forth the following three circumstances in which equitable tolling is permitted: (1) if the [Respondent] has actively misled the [Petitioner]; (2) if the [Petitioner] has in some extraordinary way been prevented from asserting his rights, or (3) if the [Petitioner] has timely asserted his rights mistakenly in the wrong forum. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001) (citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted)).
Petitioner argues that although he did not file a timely PCRA motion, he intended to file such a motion, and states that "[o]n or about February 10, 1999, [he] executed a Petition for Post Conviction Relief and forwarded same to his privately retained counsel," Eugene C. LaManna. See Mem. in Supp. Pet. at 1-2. Petitioner attaches to his Memorandum of Law in Support of his Petition an undated copy of a PCRA draft signed by him, along with a letter dated February 10, 1999 addressed to an individual named Mickey Roeberg, who is identified by Petitioner as "a friend and the person who paid LaManna to pursue post-conviction relief." Id. at 2. Petitioner also states that "[a]fter approximately five years had elapsed, with no confirmation or communication between Mr. LaManna and petitioner, inquiries were made to LaManna about the status of the post-conviction proceeding." Id. Petitioner attaches a copy of a March 15, 2004 letter from Attorney LaManna informing him that a PCRA petition was never filed. Petitioner characterizes Attorney LaManna's reasoning for not filing the Petition as "vague and ambiguous." Id., Ex. C.
Attorney LaManna's March 15, 2004 correspondence states:
I have spoken with Mickey about the PCRA.
It was my opinion, after preparing it and looking at the court records, that it would not be prudent and in fact could be counterproductive to file the appeal. The appeal would likely stir the interest of the District Attorney, all of which I believe would be negative, as they were forced to spend a great amount of effort in fighting all of the appeals.
The goal is to obtain your release. Energizing the District Attorney to defend a PCRA might motivate them to mobilize their resources to fight any release.
Good luck in you [sic] endeavors.
Mem. Law in Supp. Pet., Ex. C.
Petitioner acknowledges that ineffective assistance of collateral counsel cannot be the basis of a federal claim. See Mem. Law in Supp. Pet. at 2 (citing 28 U.S.C. section 2254(i)). He claims, nonetheless, that Attorney LaManna's alleged deceit and fraud should provide an exception to this rule, and that Attorney LaManna's malfeasance against him should equitably toll the AEDPA statute. For support, Petitioner cites Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), in which the Third Circuit reversed and remanded the District Court's dismissal of a habeas petition on the basis, in part, that counsel misled the petitioner to believe that a petition would be properly filed. Petitioner argues that he executed and mailed back the petition. and Attorney LaManna retained the petition for the specific purpose of filing it with the court. Petitioner also confusingly argues that his eight years spent on bail pending his appeals supports his contention that "it is plausible that petitioner believed his post-conviction petition was filed circa February 1999; said plausibility bolstered by the fact that Judge Jackson retired from the Bench." Mem. Law in Supp. Pet. at 3. Petitioner also cites United States v. Jackson-Bey, 302 F. Supp.2d 621 (E.D. Va. 2004), for its holding that the petitioner was granted equitable tolling for a six year period because he had documented proof that his pleading was mailed in a timely fashion to the Clerk of Court, but was inexplicably never docketed. Mem. of Law in Supp. Pet. at 3.
Jackson-Bey is factually distinguishable from the instant case. The petitioner in that case presented signed registered mail receipts dated the same day that his AEDPA one-year filing statute of limitations expired to support his equitable tolling argument. The court stated that:
it is clear that circumstances beyond defendant's control may have interfered with the timely filing and disposition of this pleading, i.e., the pleading may have been misplaced by the Clerk's Office before it was officially filed or, alternatively, the pleading may have been misplaced after it was filed but before an appropriate resolution was reached. Moreover, because relevant portions of the typewritten docket sheet maintained by the Clerk's Office are missing, it may never be known if defendant actually filed a timely § 2255 motion on April 24, 1997 or, if he did, why the motion thereafter disappeared from the case file. In these circumstances, given that the defendant's own conduct did not lead to the inexplicable long lapse of time in this case, "it would be unconscionable to enforce the limitation period against the [defendant] and gross injustice would result" by doing so. Harris, 209 F.3d at 330.Jackson-Bey, 302 F. Supp.2d at 628-629. In the instant case, Petitioner presents handwritten correspondence from himself to Mickey Roeberg, c/o Yorgey's, dated February 10, 1999, and asks this Court to accept this as evidence that he returned his executed PCRA petition to his counsel and his counsel did not timely file the petition. Petitioner is silent about the circumstances surrounding the preparation of the PCRA petition. For example, Petitioner does not allege that his attorney assured or promised him that he would file the PCRA petition or even that Petitioner himself insisted that the petition should be filed. Instead, Petitioner only alleges that Attorney LaManna did not file the petition after Petitioner sent it to him.
Respondents note that state law provides a remedy for ineffective assistance of PCRA counsel as long as the misconduct is brought to the court's attention in another PCRA petition within one year, or by the PCRA filing deadline. See Commonwealth v. Williams, 828 A.2d 981, 990 (Pa. 2003); Commonwealth v. Morris, 822 A.2d 684, 694 (Pa. 2003) ("As we have previously and repeatedly explained, a claim of ineffective assistance of counsel does not save an otherwise untimely petition for review on the merits.") Petitioner did not bring this alleged failure of counsel to file the PCRA petition to the state court's attention with any promptness.
In determining whether extraordinary circumstances exist to warrant the application of equitable tolling, this Court must examine Petitioner's due diligence in pursuing the matter under the specific circumstances he faced. Traub v. Folio, No. 04-386, 2004 WL 2252115, at *2 (E.D. Pa. Oct. 5, 2004) (citing Schleuter v. Varner, 384 F.3d 69 (3d Cir. 2004) (affirming dismissal of habeas petition as time barred and not entitled to equitable tolling because lengthy periods of time had elapsed following his conviction before he sought relief). It is Petitioner's burden to show that he acted with reasonable diligence and the extraordinary circumstances caused his petition to be untimely. Id.
Assuming, arguendo, that Petitioner can show that Attorney LaManna's conduct amounted to an extraordinary circumstance, one of the requirements for equitable tolling, Petitioner still must establish that he acted with reasonable diligence in pursuing relief. Petitioner's limitations period commenced in June of 1998, and he was expected to act with reasonable diligence throughout the entire limitations period. Petitioner miscalculates the starting date of the limitations period, and therefore if his argument with respect to Attorney LaManna's error is taken as true, he acted with arguable diligence for only the last four months of the tolling period, and only with respect to the filing of a PCRA petition, not with respect to the filing of the instant habeas petition.
Petitioner himself admits that "[a]fter approximately five [y]ears had elapsed, with no confirmation or communication between Mr. LaManna and petitioner, inquiries were made to LaManna about the status of the post-conviction proceeding." Mem. Law in Supp. Pet. at 2. This admission of Petitioner's five-year lack of diligence is perhaps most troubling to this Court. Petitioner was found guilty in 1990, and he was released on bail from 1990 through April 2, 1998. His judgment of conviction became final on June 2, 1998, and he therefore had until June 3, 1999 to timely file both a PCRA petition and a federal habeas petition. Assuming that Petitioner's February 10, 1999 correspondence and draft PCRA petition was actually sent to Attorney LaManna at that time, Petitioner took absolutely no action from February 10, 1999 through May 5, 2004 to protect his rights. Despite this dilatory behavior, Petitioner now comes before this Court seeking relief on the basis that his attorney was ineffective.
Petitioner sent correspondence to this Court dated November 9, 2004, along with a pleading labeled Praecipe to Support the Record. Attached to the Praecipe is correspondence from Petitioner to Attorney LaManna dated May 16, 2000, which Petitioner presents to support his statement that as of May 16, 2000, he continued to believe that Attorney LaManna had filed a timely PCRA petition on his behalf. See Dkt. No. 14. Although potentially relevant to Petitioner's claim of ineffective assistance of counsel at the PCRA level, or possibly a private cause of action for legal malpractice against Attorney LaManna, this correspondence does not aid Petitioner's instant case because he failed to act with reasonable diligence in bringing his claims to this Court.
Although Petitioner is acting pro se, he is a highly educated man and was a licensed physician for many years. Based on this reason alone, it strains credulity that Petitioner asks this Court to excuse his dilatory behavior. Under the circumstances of this case, this Court finds that Petitioner did not act in a reasonably diligent fashion because a reasonably diligent petitioner would have acted promptly to preserve his rights not only in the state court, but also in this Court. Indeed, Petitioner fails to allege any steps that he took to timely file the instant federal habeas petition. Thus, Petitioner's equitable tolling argument fails. Holmes v. Vaughn, No. 01-2565, 2003 WL 23112383, at *6-*7 (E.D. Pa. Nov. 25, 2003). The Petition is time-barred, and must be denied with prejudice and dismissed without an evidentiary hearing.
On August 23, 2004, Petitioner filed a Motion to Amend the Petition for Writ of Habeas Corpus pursuant to Federal Rule of Civil Procedure 15. Petitioner seeks permission to include a claim that he is entitled to relief pursuant to Blakely v. Washington, 124 S.Ct. 253 (2004). Because the Petition itself is time-barred, any amendment to the Petition is also time-barred. Accordingly, the Motion to Amend should be denied.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of November, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. It is also RECOMMENDED that Petitioner's Motion to Amend the Petition should also be DENIED. There is no probable cause to issue a certificate of appealability.