Opinion
Civil Action No. 01 - 5
02-28-2020
DEMETRIUS BAILEY, Petitioner, v. CONNER BLAINE, et al., Respondents.
District Judge David S. Cercone
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Petitioner's Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) (ECF No. 58) and Supplement thereto (ECF No. 59) be denied. Also, to the extent that a Certificate of Appealability is required, it too should be denied.
II. REPORT
A. Procedural History in State Court
Petitioner Demetrius Bailey ("Petitioner") is a state prisoner who is currently serving a mandatory life sentence after he was convicted by a jury of murder in the second degree and robbery on December 20, 1994. See Commonwealth v. Bailey, Nos. CC199406409 and CC199408102 (Allegheny Cty. Ct of Common Pleas). His judgment of sentence was affirmed by the Pennsylvania Superior Court on November 20, 1995, and the Pennsylvania Supreme Court denied his petition for allowance of an appeal on April 23, 1996. See Commonwealth v. Bailey, 673 A.2d 398 (Table) (Pa. Super. 1995) (unpublished memorandum), appeal denied, 675 A.2d 1241 (Table) (Pa. 1996).
Petitioner killed the victim on May 5, 1994, after unsuccessfully demanding money from him in a loud argument overheard by others in an apartment complex. He shot the victim in the head and, as the victim lay dead or dying, took money from the victim's pocket. Three eyewitnesses saw various stages of the murder and robbery. Petitioner, born on July 9, 1973, was twenty years old at the time of the murder, and twenty-one at the time of trial. After the verdict, the trial court sentenced him to a term of life imprisonment without parole but imposed no further penalty for the robbery conviction. See Commonwealth v. Bailey, 2019 WL 4927157, at *1 (Pa. Super. Oct. 7, 2019).
On April 21, 1997, Petitioner, represented by privately retained counsel, filed his first petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"). It was denied on March 19, 1998, and the Superior Court affirmed the denial of relief on September 17, 1999. See Commonwealth v. Bailey, 747 A.2d 407 (Table) (Pa. Super. 1999) (unpublished memorandum).
While Petitioner expected and requested his attorney to file a petition for allowance of appeal to the Pennsylvania Supreme Court, he did not do so. This issue forms the basis for Petitioner's current Rule 60(b)(6) Motion pending before the Court and will be discussed in further detail herein.
On August 5, 2003, Petitioner, acting pro se, filed his second petition pursuant to the PCRA. Counsel was appointed but ultimately filed a motion to withdraw and a "no-merit" brief pursuant to Turner-Finley practice. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On June 23, 2005, the PCRA court denied and dismissed Petitioner's PCRA petition. On June 7, 2007, the Superior Court affirmed the decision, on November 2, 2007, the Pennsylvania Supreme Court denied appeal, on February 19, 2008, the United States Supreme Court denied certiorari. See Commonwealth v. Bailey, 932 A.2d 248 (Pa. Super. 2007) (unpublished memorandum), appeal denied, 934 A.2d 71 (Pa. 2007), cert. denied, Bailey v. Pennsylvania, 552 U.S. 1215 (2008).
On July 8, 2008, Petitioner, again pro se, filed his third PCRA petition in the form of a petition for writ of habeas corpus. On August 12, 2008, the PCRA court issued its notice pursuant to Pennsylvania Rule of Criminal Procedure 907, that it intended to dismiss Petitioner's petition without a hearing. On September 8, 2008, the PCRA court denied Petitioner's third PCRA petition. He filed his notice of appeal on September 16, 2008.
On June 25, 2009, while the appeal of his third PCRA petition was still pending, Petitioner filed his fourth PCRA petition, again pro se. The PCRA court denied this petition on July 29, 2009. Subsequently, on August 14, 2009, the Pennsylvania Superior Court affirmed the denial of Petitioner's third PCRA petition, and on January 19, 2010, the Pennsylvania Supreme Court denied the appeal. See Commonwealth v. Bailey, 984 A.2d 1006 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 987 A.2d 158 (Pa. 2010).
On November 15, 2010, Petitioner filed another petition, couched as a "Petition Challenging the Constitutionality of Coroner's Statute and Petition to Strike/void Decree." On August 10, 2012 and September 14, 2012, the lower court entered orders denying the petition. Petitioner filed his notice of appeal on October 9, 2012, and on November 12, 2013, the Superior Court quashed it as untimely filed after finding that the lower court's order on September 14, 2012 was a legal nullity since the court no longer had jurisdiction to act. See Commonwealth v. Bailey, 2013 WL 1125065, at *2 (Pa. Super. Nov. 12, 2013). The Superior Court nevertheless determined that it would have affirmed the lower court even if the appeal had been timely filed because the petition itself was untimely filed under the PCRA. It specifically found that the relief Petitioner was seeking was available under the PCRA even though he attempted to couch his position as something other than a PCRA petition to avoid its time bar. Id. Petitioner's appeal to the Pennsylvania Supreme Court was denied on June 4, 2014. See Commonwealth v. Bailey, 93 A.2d 461 (Table) (Pa. 2014).
Petitioner filed another pro se PCRA petition on November 5, 2014. It was dismissed on April 20, 2016, and the Superior Court affirmed the dismissal of the petition as untimely on April 7, 2017. See Commonwealth v. Bailey, 2017 WL 1291890 (Pa. Super. Apr. 7, 2017).
Petitioner filed what was treated as his sixth PCRA petition and it was dismissed as untimely on January 25, 2018. The Superior Court affirmed the dismissal of the petition on October 7, 2019, specifically finding that Petitioner's arguments did not satisfy any exception to the PCRA's statutory time-bar. See Commonwealth v. Bailey, 2019 WL 4927157 (Pa. Super. Oct. 7, 2019). Petitioner appealed, but as of today his petition for allowance of appeal is still pending in the Pennsylvania Supreme Court. See Commonwealth v. Bailey, 11 WAL 2020.
B. Procedural History in Federal Court
Petitioner has a long history of challenging his 1994 judgment of sentence in this Court through the filing of federal habeas petitions filed pursuant to 28 U.S.C. § 2254 and motions for relief from judgment filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The first time Petitioner sought to challenge his judgement of sentence in federal court was by way of a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 on December 17, 2000, and docketed at the instant case number on January 2, 2001. (ECF No. 1.) That petition was dismissed as untimely on September 23, 2001. (ECF No. 24.) When he appealed, the United States Court of Appeals for the Third Circuit denied him a certificate of appealability on September 30, 2002. (ECF No. 32); see also C.A. No. 01-3841 (3d Cir.). His then filed a petition for a writ of certiorari that was denied by the United States Supreme Court on March 10, 2003. (ECF No. 34); see also No. 02-8402 (S. Ct.). After that, Petitioner returned to this Court and filed a motion pursuant to Federal Rule of Civil Procedure 60(b) on December 4, 2003, which was denied by the magistrate judge on January 13, 2004. (ECF Nos. 37-39.) His appeal of that order to the district judge assigned to the case was denied on November 3, 2004. (ECF Nos. 40-41.) Petitioner's attempt to appeal that order to the Third Circuit was denied on March 16, 2005. (ECF No. 4); see also C.A. No. 04-4417 (3d Cir.). Petitioner filed another Rule 60(b) motion on May 18, 2007 (ECF No. 44), and it was denied by the magistrate judge on the same day (ECF No. 45). Petitioner appealed that order denying him Rule 60(b) relief, and the Third Circuit dismissed it for lack of jurisdiction directing the Court to construe it as an appeal to the district judge. (ECF No. 50); see also C.A. No. 07-2729 (3d Cir.). The appeal was denied by the district judge on October 24, 2007. (ECF No. 51.) Petitioner appealed to the Third Circuit who denied his request for a certificate of appealability on February 6, 2008. (ECF No. 56); see also C.A. No. 07-4202 (3d Cir.).
Petitioner challenged his 1994 judgment of sentence in a federal habeas petition a second time in this Court on August 15, 2007. See No. 2:07-cv-1122 (ECF No. 1). That petition was dismissed as an unauthorized second petition on January 10, 2008. See No. 2:07-cv-1122 (ECF No. 22). Petitioner sought a certificate of appealability with the Third Circuit who denied it on April 18, 2008. See No. 2:07-cv-1122 (ECF No. 26); see also C.A. No. 08-1396 (3d Cir.). He then filed a Rule 60(b) motion, which the Court denied on June 23, 2008. See No. 2:07-cv-1122 (ECF Nos. 27 & 28). His sought a certificate of appealability for the denial of Rule 60(b) relief, which the Third Circuit denied on November 17, 2008. See No. 2:07-cv-1122 (ECF No. 31); see also C.A. No. 08-3124 (3d Cir.)
On July 9, 2008, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit an application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on October 7, 2008. See C.A. No. 08-3013 (3d Cir.).
On February 3, 2011, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit another application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on June 1, 2011. See C.A. No. 11-1290 (3d Cir.).
Petitioner challenged his 1994 judgment of sentence in this Court for a third time on May 8, 2013. See No. 2:13-cv-653 (ECF No. 1). Although the petition was titled "28 U.S.C. § 3161 Consent and Stipulation to Intervene as Plaintiff" and he sought an "Order for the United States Attorney General or State Attorney General to intervene with the State Court due to Mr. Bailey is drawing into question the constitutionality of a statu[t]e," the petition was treated as one seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 and transferred to the Third Circuit Court of Appeals for consideration as a second or successive petition. See No. 2:13-cv-653 (ECF No. 2). The Third Circuit entered an order on June 25, 2013, denying Petitioner's application to file a second or successive federal habeas petition. See No. 2:13-cv-653 (ECF No. 7); see also C.A. No. 13-2426 (3d Cir.).
Petitioner challenged his 1994 judgment of sentence in this Court a fourth time on September 17, 2013 by filing a document denominated as a "Motion to Vacate/Motion for Relief Challenging the Constitutionality of Coroner's Statute and Petition to Strike/Void Decree." See 2:13-cv-1362 (ECF No. 1). Although what Petitioner filed specifically invoked Federal Rule of Civil Procedure 60(b)(4), which allows a party to seek relief on the ground that the "judgment is void," the magistrate judge characterized it as a petition filed pursuant to 28 U.S.C. § 2254 finding that it did not meet the definition of a Rule 60(b) motion and transferred it to the Third Circuit for consideration as a second or successive petition. See 2:13-cv-1362 (ECF No. 7). The Third Circuit denied Petitioner leave to file a second or successive petition on November 18, 2013. See C.A. 13-4056 (3d Cir.). Prior to that, Petitioner filed in the case a "Supplemental Motion to Vacate and Motion for Relief from Judgment" on October 15, 2013, that the magistrate judge denied the following day. See 2:13-cv-1362 (ECF No. 8). When he appealed the denial of that motion, the Third Circuit remanded the matter so that a district judge could rule on the objections to that order that Petitioner had filed before commencing the appeal. See 2:13-cv-1362 (ECF Nos. 9, 19); see also C.A. 13-4444 (3d Cir.). After the case was returned to this Court, the district judge disagreed with the magistrate judge's prior assessment that the initial petition that had invoked Rule 60(b)(4) did not meet the definition of a Rule 60(b) motion, but he nevertheless found that the ground for relief that Petitioner advanced in his Rule 60(b)(4) motion was without merit and denied it on January 4, 2016. See 2:13-cv-1362 (ECF No. 20). On appeal, the Third Circuit denied Petitioner a certificate of appealability. See 2:13-cv-1362 (ECF No. 24); see also C.A. No. 16-1115 (3d Cir.). Petitioner then returned to this Court and filed another Rule 60(b) motion seeking to challenge the statute under which he was convicted. See 2:13-cv-1362 (ECF No. 25). The motion was dismissed for lack of jurisdiction because the Court found that it was really an unauthorized successive petition despite Petitioner's protestations to the contrary. See 2:13-cv-1362 (ECF No. 32). Petitioner sought and was denied a certificate of appealability by the Third Circuit on June 21, 2018. See 2:13-cv-1362 (ECF No. 36); see also C.A. No. 18-1350 (3d Cir.).
Petitioner challenged his 1994 judgment of sentence in this Court a fifth time on June 12, 2014. See 3:14-cv-121 (ECF No. 1). On June 16, 2014, the petition was determined to be an unauthorized second or successive petition and was transferred to the Third Circuit for consideration as such. See 3:14-cv-121 (ECF No. 2). There is no record of any further proceedings regarding this case.
On March 31, 2016, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit a third application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on May 31, 2016. See C.A. 16-1731 (3d Cir.).
On November 4, 2016, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit a fourth application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on January 6, 2017. See C.A. 16-4008 (3d Cir.).
On July 7, 2017, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit a fifth application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on August 25, 2017. See C.A. 17-2459 (3d Cir.).
On October 16, 2019, Petitioner filed the Rule 60(b)(6) Motion that is currently pending before the Court (ECF No. 58) and he filed a Supplement to it on December 31, 2019 (ECF No. 59). In his Motion, Petitioner contends that his first federal habeas petition should not have been dismissed as untimely, but that that statute of limitations should have been equitably tolled because his PCRA appellate counsel abandoned him and failed to file an appellate brief on his behalf.
C. Successive Petitions and Rule 60(b) Motions
The Supreme Court has held that a district court lacks subject matter jurisdiction over an unauthorized second or successive petition. Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam). See, e.g., Benchoff v. Colleran, 404 F.3d 812, 815 (3d Cir. 2005); BRIAN R. MEANS, Federal Habeas Manual § 11:8 (2019 Edition). Therefore, when a judge assigned to a habeas case conducts the preliminary review of the petition as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the judge must inquire into whether the petition appears to be second or successive. If it is, the petition is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), including the requirement that the applicant obtain permission from the court of appeals. 28 U.S.C. § 2244(b)(3). If the applicant did not obtain authorization from the court of appeals to file the petition, a district court within the Third Circuit can proceed in one or two ways: It can: (1) enter an order dismissing the petition for lack of subject matter jurisdiction; or (2) enter an order transferring the petition to the court of appeals pursuant to 28 U.S.C. § 1631 for consideration as an application to file a second or successive petition. Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002). See also Federal Habeas Manual § 11:81.
To avoid AEDPA's second or successive gatekeeping requirements, applicants seeking habeas relief will sometimes raise claims in what they designate as a Rule 60(b) motion. An applicant seeking habeas relief "is not permitted to circumvent AEDPA's second or successive petition requirements simply by labeling the petition . . . as something other than what it is." Federal Habeas Manual §11:42. In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court addressed the circumstances in which the utilization of Rule 60(b) is "inconsistent with" § 2244(b)'s second or successive requirements and, as a consequence, not available to a state prisoner seeking habeas relief. The Court held that a Rule 60(b) motion must be construed as a habeas application subject to § 2244(b)'s requirements when it advances one or more "claims." Gonzalez, 545 U.S. at 531-32. The Court explained that "[i]n most cases, determining whether a Rule 60(b) motion advances one or more 'claims' will be relatively simple." Id. at 532. Where "[a] motion . . . seeks to add a new ground for relief it obviously is advancing a "claim." Id. So is a motion that "attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief." Id. (footnote omitted). Similarly, a motion that seeks to present newly discovered evidence in support of a claim previously denied presents a "claim." Id.
The Court further held that a Rule 60(b) motion is a "true" 60(b) motion if it challenges only a procedural ruling of the habeas court (such as failure to exhaust, procedural default or a statute of limitations bar) that precluded a merits determination of the habeas application, id. at 532 n.4, or challenges a defect in the integrity of the federal habeas proceedings, such as an assertion of fraud. Id. at 532.
Thus, when a document designated as a Rule 60(b) motion is filed with the district court in a habeas case, the judge assigned to the case must first determine, using the criteria outlined in Gonzalez, whether the motion is a true Rule 60(b) motion or is actually a second or successive habeas petition. If the judge concludes that the motion is a true Rule 60(b) motion, the motion should be ruled upon in the manner any other Rule 60(b) motion would be. Gonzalez, 545 U.S. at 533-36. See also Pridgen v. Shannon, 380 F.3d 721, 727-28 (3d Cir. 204). If, however, the judge concludes that the motion appears to be an unauthorized second or successive habeas petition, it must be dismissed for lack of subject matter jurisdiction or be transferred to the court of appeals for consideration as an application to file a second or successive petition. Id. at 531-32; Pridgen, 380 F.3d at 725; Robinson, 313 F.3d at 139.
D. Discussion
In his instant motion, Petitioner specifically invokes Rule 60(b)(6), which allows a party to seek relief from a final judgment or order for "any other reason that justifies relief" that is not enumerated in subsections 1 through 5. If a motion is filed under Rule 60(b)(6), it must be filed "within a reasonable time . . . after the entry of the judgment or order or the date of the proceeding." FRCP 60(c)(2).
In his Rule 60(b)(6) motion, Petitioner sets forth a reason why this Court should have equitably tolled the statute of limitations before dismissing his federal habeas petition as untimely on September 13, 2001. This argument is of a procedural nature challenging the manner in which his habeas petition was procured and is not a new "claim" for relief. See Gonzalez, 545 U.S. at 531 (A Rule 60(b) motion will be construed as a second or successive habeas petition when the petitioner challenges his underlying conviction rather than the manner in which his previous habeas petition was procured, which is a denial for such reasons as failure to exhaust, procedural default, or a statute-of-limitations bar.) Therefore, for purposes of this R&R his motion will be treated as a true 60(b) motion rather than an unauthorized second or successive federal habeas petition that would require either dismissal for lack of subject matter jurisdiction or transfer to the Third Circuit for consideration as an application to file a second or successive petition. However, it must be known that a motion under Rule 60(b)(6) requires a showing of "extraordinary circumstances," which the Supreme Court has recognized "will rarely occur in the habeas context." Gonzalez, 545 U.S. at 535.
To begin, this Court dismissed Petitioner's federal habeas petition on September 13, 2001 after finding it was untimely filed. In this regard, the Court set forth the law with respect to AEDPA's one-year statute of limitations period for state prisoners seeking federal habeas review, which is codified at 28 U.S.C. § 2244(d) and provides as follows:
(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 that 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 facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d).
(2) The time during which a properly filed application for State post-conviction 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 section.
This Court then went on to analyze whether Petitioner's federal habeas petition was timely filed under the one-year limitations period. First, the court determined that the trigger date for Petitioner's one-year limitations period was dictated by § 2244(d)(1), the date Petitioner's direct review became "final", which in his case was found to be July 23, 1996, 90 days after the Pennsylvania Supreme Court denied his petition for allowance of appeal since Petitioner did not file for a writ of certiorari in the United States Supreme Court. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review, including the time limit (90 days) for filing a writ of certiorari in the Supreme Court). Accordingly, absent any tolling, Petitioner had one year from that date, or until July 23, 1997, to file a timely federal habeas petition in this Court, but his federal habeas petition was considered filed (at the earliest) on December 17, 2000.
Before engaging in the second inquiry, whether Petitioner could take advantage of the "tolling" provision section 2244(d)(2), the Court found that "almost nine months" of Petitioner's one-year statute of limitations under AEDPA elapsed after his judgement of sentence became "final" on July 23, 1996, and before he filed his first state PCRA petition on April 21, 1997. In actuality, it was 271 days, which only left Petitioner with 94 days remaining in his one-year limitations period.
As to how much tolling Petitioner was entitled to after he filed his first PCRA petition on April 21, 1997, which was deemed to be a "properly filed" state post-conviction proceeding, this Court determined that those proceedings tolled the statute of limitations until they ceased to be "pending" on October 16, 1999, which was thirty days following the entry of the Superior Court's order which affirmed the denial of Petitioner's first PCRA petition on September 17, 1999. When the statute of limitations recommenced running on October 17, 1999, Petitioner had only 94 days remaining to file his federal habeas petition, which would have expired on January 19, 2000. However, his federal habeas petition in this case (Petitioner's first federal habeas petition) was not filed until December 17, 2000, or approximately 332 days after the one-year limitations period expired.
Petitioner did not file another PCRA petition in the state court until August 5, 2003, and whether or not it was considered "properly filed" is of no consequence in this case since it was filed after his AEDPA one-year statute of limitations period expired.
In his Rule 60(b) Motion, Petitioner acknowledges that he filed his federal habeas petition outside of AEDPA's one-year statute of limitations, but he argues that the Court should have equitably tolled the limitations period for the time he sought a petition for allowance of appeal nunc pro tunc in the Pennsylvania Supreme Court following the entry of the Pennsylvania Superior Court's order affirming the denial of PCRA relief. As this Court found when it was evaluating the timeliness of Petitioner's federal habeas petition, Petitioner failed to file a timely petition for allowance of appeal with the Pennsylvania Supreme Court after the Superior Court affirmed the decision of the trial court relative to the relief he sought in his PCRA proceeding. However, on February 10, 2000, which was several months after the time period during which Petitioner had the right to file a petition for allowance of appeal in the Pennsylvania Supreme Court, he filed pro se a "Motion for Permission to File Petition for Allowance of Appeal Nunc Pro Tunc" with that court, which was denied on June 15, 2000. Commonwealth v. Bailey, 16 WM 2000 (Pa. June 15, 2000); see also (ECF No. 59-1, p.9). Because this petition was not timely filed, this Court did not statutorily toll the time in which it was pending before that court. Petitioner now argues (although not for the first time) that he should be granted equitable tolling for the period of time that petition seeking to appeal nunc pro tunc was pending before the Pennsylvania Supreme Court because his privately retained attorney, who his family had hired to litigate his PCRA proceedings, had "abandoned him" by not filing a timely petition for allowance of appeal with the Pennsylvania Supreme Court.
The United States Supreme Court has held that AEDPA's statute-of-limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled to equitable tolling only if he shows that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at 649. See also Ross, 712 F.3d at 798-804; United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013); Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). "This conjunctive standard requires showing both elements before we will permit tolling." Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original). The Third Circuit has advised that:
The United States Court of Appeals for the Third Circuit has explained:
The diligence required for equitable tolling purposes is reasonable diligence, not maximum, extreme, or exceptional diligence. Holland, 130 S.Ct. at 2565.... A determination of whether a petitioner has exercised reasonable diligence is made under a subjective test: it must be considered in light of the particular circumstances of the case. See Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) ("Due diligence does not require the maximum feasible diligence, but it does require diligence in the circumstances.") (emphasis added) (internal quotation marks and citation omitted); see also Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011) ("To determine if a petitioner has been diligent in pursuing his petition, courts consider the petitioner's overall level of care and caution in light of his or her particular circumstances." (emphasis added)).
"[t]here are no bright lines in determining whether equitable tolling is warranted in a given case." Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). Nevertheless, "courts must be sparing in their use of equitable tolling," Seitzinger v. Reading Hosp. & Medical Ctr., 165 F.3d 236, 239 (3d Cir. 1999), and should do so "only when the principles of equity would make the right application of a limitation period unfair." Miller [v. New Jersey State Dept. of Corr.], 145 F.3d [616, 618 (3d Cir. 1998)].Sistrunk, 674 F.3d at 190.
In support of his equitable tolling argument, Petitioner has submitted three letters from his PCRA counsel, Attorney Robert A. Crisanti, whom he alleges "abandoned" him following the Superior Court's Order dated September 17, 1999, affirming the denial of his PCRA petition. Petitioner argues that he repeatedly requested Attorney Crisanti to file a timely petition for allowance of appeal with the Pennsylvania Supreme Court by the deadline of October 17, 1999, but he never did due to a misunderstanding of a fee arrangement. The letters he submits are dated September 22, 1999 (ECF No. 59-1, p.1), October 21, 1999 (ECF No. 59-1, p.4), and November 29, 1999 (ECF No. 59-1, p.5), respectively.
The first letter, dated September 22, 1999, reads as follows:
Dear Mr. Bailey:
I have received your two most recent letters.
I must also inform you that I have received a September 17, 1999 decision from the Superior Court of Pennsylvania affirming the denial of your PCRA Petition. A copy of this Judgment and Memorandum are enclosed for your review.
At this point, your only remaining state court option would be to file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. This Petition must be filed within thirty (30) days of the date of entry of the Superior Court's decision, so the Petition must be filed by October 17, 1999. If a Petition is not filed on or before that date, you will have relinquished your right to further challenge the denial of your PCRA Petition in state court.
If you would like my assistance in filing this Petition, you need to contact me immediately. I will need time to prepare the Petition, and we will have to discuss the payment of the unpaid balance of my legal fees.
Very truly yours,
Robert A. Crisanti
The second letter, dated October 21, 1999, reads as follows:
Dear Mr. Bailey:
I have received your most recent letter. As I had advised you in my past two (2) letters, I would not take any further action on your behalf without the payment of a retainer and an agreement for the payment of the balance. No such retainer was paid, and no agreement was ever entered. For that reason, I have not filed an Allocatur Petition on your behalf.
I regret that our long-standing relationship had to end in this manner, but I made every effort to provide you adequate time to secure a retainer. I was quite clear that a retainer was required prior to my agreeing to render any additional services on your behalf.
At this point, you have exhausted your state court options. Your only remaining option would be to file a Habeas Corpus Petition in the Federal District Court for the Western District of Pennsylvania. I have returned your court papers, transcripts, and related documents for your benefit.
Good luck!
Very truly yours,
Robert A. Crisanti
The third letter, dated November 29, 1999, reads as follows:
Dear Mr. Bailey:
I have received your November 17, 1999 letter, and I would be willing to undertake the task of petitioning the Pennsylvania Supreme Court to reinstate your right to file a Petition for Allowance of Appeal Nunc Pro Tunc. If that is acceptable to you, please indicate so in a letter.
If do, however, want to advise you that I cannot guarantee that the court will reinstate your right to file a Petition for Allowance of Appeal. I will be quite candid in advising the court that the error was mine, but I cannot promise you that the court will consider that a valid explanation.
If you are still willing to proceed with this information in mind, then you need to write to me immediately. I will take any additional steps to comply with our Fee Agreement, and in your letter you must agree to forego any claim you may have against me because of my mistake. Please indicate in writing whether you will agree to these terms.
Very truly yours,
Robert A. Crisanti
Based on the record before the Court, it is not known what became of any agreement Petitioner may have had with Attorney Crisanti to file a petition for allowance of appeal nunc pro tunc in the Pennsylvania Supreme Court because it was not until February 10, 2000 that such petition was filed and Petitioner filed it pro se. However, while there are numerous reasons why Petitioner's argument does not support entitlement to equitable tolling, there is one very important reason why success on the argument wouldn't even matter. That is, even if this Court were to assume without deciding that Petitioner was entitled to equitable tolling, such tolling would only extend to June 15, 2000, the day that the Pennsylvania Supreme Court denied his petition for allowance of appeal nunc pro tunc, and, even taking that time into account, his federal habeas petition would still have been untimely filed. As noted above, Petitioner had only 94 days of his one-year statute of limitations period remaining to file a timely federal habeas petition, which would have expired on September 17, 2000, and his federal habeas petition was not deemed filed until December 17, 2000, three months later.
Nevertheless, despite the lack of success such equitable tolling would have made on the timeliness of his petition, it is important to note that Petitioner has not met his burden of establishing that after he received notification from Attorney Crisanti that the Superior Court had affirmed the denial of his PCRA petition he: (1) pursued his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented him from filing a federal habeas petition. Holland, 560 U.S. at 649. As set forth above, Petitioner was notified by letter dated September 22, 1999, that he had until October 17, 1999 to file a petition for allowance of appeal in the Pennsylvania Supreme Court, and Attorney Crisanti made clear in that letter that he would not file said petition until Petitioner contacted him to resolve the payment of unpaid legal fees. While it is not known when Petitioner received that letter from Attorney Crisanti (nor is it known, based on the third letter, whether Attorney Crisanti was mistaken in his belief as to Petitioner owing unpaid legal fees for his services), Petitioner took no action to file a petition for allowance of appeal until February 10, 2000, which was over four months after Attorney Crisanti sent his first letter advising Petitioner of the October 17, 1999 deadline. Furthermore, Petitioner took no action to file his federal habeas petition in this Court until over six months after the Pennsylvania Supreme Court had denied his petition for allowance of appeal nunc pro tunc, notwithstanding the fact that Attorney Crisanti advised in his letter dated October 21, 1999, that this was Petitioner's "only remaining option".
Despite Petitioner's inability to demonstrate any basis to grant him equitable tolling from October 17, 1999, the deadline to file a timely petition for allowance of appeal with the Pennsylvania Supreme Court, until June 15, 2000, the day the Pennsylvania Supreme Court denied his petition for allowance of appeal nunc pro tunc, there is yet another reason why Petitioner's claim deserves no further discussion. This is because Petitioner has relied on this very same argument at least once before in challenging this Court's dismissal of his federal habeas petition as untimely, and the argument was rejected by the Third Circuit. See C.A. No. 01-3841 (3d Cir. Sept. 30, 2002); see also 2:13-cv-1362 (ECF No. 2, p.8). There is no reason to entertain this argument any further, especially given that it's hypothetical success would not even alter this Court's finding that Petitioner's federal habeas petition was untimely filed. See Baiter v. U.S., 410 F. App'x 428, 430 (3d Cir. 2010) (finding that the district court did not abuse its discretion in denying relief under Rule 60(b)(6) where the motion "simply rehashed arguments" made in previous motions). Accordingly, the Rule 60(b)(6) Motion should be denied.
E. Certificate of Appealability
This Court should deny a certificate of appealability because jurists of reason would not conclude that the issues presented in Petitioner's Rule 60(b)(6) Motion "are adequate to deserve encouragement to proceed further." See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that Petitioner's Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) (ECF No. 58) and Supplement thereto (ECF No. 59) be denied. Also, to the extent that a Certificate of Appealability is required, it too should be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: February 28, 2020.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Demetrius Bailey
CP-7819
SCI Camp Hill
2500 Lisburn Road
Camp Hill, PA 17001
Counsel of record
(Via CM/ECF electronic mail)
Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013).