Summary
holding alleged failure of courts and counsel to notify petitioner of adverse state court opinion not "extraordinary circumstances"
Summary of this case from Leggitt v. PalakovichOpinion
Civil Action No. 04-3640.
February 24, 2005
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Jamal Ball ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is currently incarcerated in the State Correctional Institution in Huntington, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied and dismissed without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response thereto, and all exhibits attached to those pleadings.
On April 6, 1999, Petitioner pled guilty to firstdegree murder and possession of an instrument of crime ("PIC") in exchange for the prosecution's agreement to recommend a sentence of life imprisonment and dismissal of murder charges against his three co-defendants. The Honorable Jane Cutler Greenspan sentenced Petitioner on that date to life imprisonment for first degree murder and two and one-half years' imprisonment for PIC, to be served concurrently. Petitioner thereafter filed a motion asking that the life sentence be vacated and a death sentence reimposed on April 14, 1999. Judge Greenspan summarily denied the request, and Petitioner did not file a direct appeal.
On January 19, 2000, petitioner filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA").See 42 Pa. C.S.A. § 9541. Counsel was appointed to represent petitioner and did not file an amended petition, but instead filed a no-merit letter and request to withdraw pursuant toCommonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). The PCRA court allowed counsel to withdraw and dismissed the petition without a hearing on August 16, 2000. See Resp., Ex. A.
Petitioner appealed the dismissal to the Superior Court of Pennsylvania, claiming that: (1) the PCRA court erred in adopting the no-merit letter absent an indication of independent review; and (2) PCRA counsel was ineffective. The Superior Court vacated the order dismissing the PCRA petition on June 25, 2001, and remanded the case for the PCRA court to conduct an independent review and prepare an opinion addressing the issues identified in the Finley letter. See Resp., Ex. B; Commonwealth v. Ball, 779 A.2d 1213 (Pa.Super. 2001) (table). On remand, the PCRA court conducted an examination of the record, determined that the issues were meritless, and issued an opinion on September 17, 2001. See Resp., Ex. C. Petitioner appealed again to the Superior Court, claiming that the PCRA court erred in dismissing his petition without a hearing and without providing adequate notice of dismissal pursuant to Pennsylvania Rule of Criminal Procedure 907. The Superior Court found that the PCRA court had not complied with Rule 907 on remand despite the court's ruling that the remand was for the limited purpose of reviewing the record and preparing an opinion. Thus, the Superior Court vacated the dismissal of the PCRA petition on October 25, 2002, and remanded the case for issuance of Rule 907 notice.See Resp., Ex. D; Commonwealth v. Ball, 815 A.2d 1123 (Pa.Super. 2002) (table). On November 15, 2002, the PCRA court served Petitioner with a notice of its intent to dismiss his petition pursuant to Rule 907. The PCRA court dismissed the petition on December 20, 2002. See Resp., Ex. E.
New counsel was appointed for Petitioner, and took an appeal of the dismissal of the PCRA petition to the Superior Court, claiming that Petitioner's former PCRA counsel was ineffective for failing to argue that trial counsel was ineffective for failing to file a direct appeal and for coercing Petitioner's guilty plea. The Superior Court found that Petitioner's claims were waived and affirmed the PCRA court's order dismissing the PCRA petition on December 31, 2003. See Resp., Ex. F.
On August 2, 2004, Petitioner filed the instant Petition containing the following two claims: (1) his conviction was obtained by a guilty plea that was unlawfully induced or not voluntarily made with understanding of the charges and the consequences of the plea; and (2) he was denied the effective assistance of counsel. (Pet., pp. 9-10.) Respondents contend that the instant Petition is time-barred and that Petitioner's claims are procedurally defaulted.
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). If direct review of a criminal conviction ended after the AEDPA's effective date, a prisoner has one year from the date direct review ended to properly file a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). In this case, Petitioner's convictions became final on May 14, 1999, thirty days following the denial of his motion for reconsideration of sentence. Because Petitioner's convictions became final after enactment of the AEDPA, he had one year from the date his convictions became final, or until May 13, 2000, to file a timely federal petition for writ of habeas corpus.
There is an exception in the statute, however, for "[t]he 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 subsection." 28 U.S.C. § 2244(d)(2). Petitioner filed his PCRA petition on January 19, 2000, after two hundred and forty-nine days of the statutory tolling period elapsed. The statute of limitations period was tolled from that date until January 30, 2004, thirty days after the Pennsylvania Superior Court affirmed the denial of PCRA relief. One hundred and sixteen days remained in the statutory tolling period within which Petitioner could file a timely habeas petition, or until May 25, 2004. Because the instant Petition was not signed until July 29, 2004, it is time-barred.
Due to the prison mailbox rule, this Court must accept July 29, 2004 as the date that the Petition was filed, because on that date, Petitioner signed the instant Petition and presumably handed it over to prison officials for mailing. On August 2, 2004, the Petition was received and docketed by the Clerk of Courts. See Burns, 134 F.3d at 113.
One opportunity for relief from the time-bar may remain for Petitioner, however, because the statute of limitations in the AEDPA is subject to equitable tolling. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 540 U.S. 826 (2003) (citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998) (citation omitted)). "[E]quitable 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 United States Court of Appeals for 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 may contend that he is entitled to equitable tolling because he has in some extraordinary way been prevented from asserting his rights. He alleges that he did not receive notice of the December 31, 2003 Superior Court decision affirming the denial of his PCRA petition until July 8, 2004, when he received a copy of the docket sheet. Petitioner alleges that the courts and his court-appointed counsel failed to notify him of the Superior Court's decision.
This argument has been recently rejected by the Third Circuit in LaCava v. Kyler, No. 03-1398, ___ F.3d ___, 2005 WL 326832 (3d Cir. Feb. 11, 2005). In that case, LaCava claimed that equitable tolling should apply to toll the AEDPA statute of limitations because he did not receive notice of the Pennsylvania Supreme Court's denial of his allocatur petition within the limitations period, and he exercised reasonable diligence in filing his habeas petition when he received notice. The Third Circuit disagreed with LaCava's claim that his failure to receive notice constituted exraordinary circumstances which would warrant equitable tolling. Id. at *3. The court noted that LaCava was represented by counsel during his state collateral proceedings, therefore he was not entitled to personal notice of the Pennsylvania Supreme Court's order pursuant to Pennsylvania Rule of Appellate Procedure 1123(a). Id. The Third Circuit also rejected any argument that the ineffectiveness of LaCava's counsel would serve to toll the statute of limitations, as "we have stated that `[i]n 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.'" Id. (quoting Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003) (quoting Fahy, 240 F.3d at 244) and Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002)). The court held that LaCava advanced no allegations of attorney malfeasance to elevate his case to an "extraordinary circumstance" sufficient to warrant equitable tolling. Id. Moreover, LaCava filed his petition twenty-one months following his receipt of notice from the Pennsylvania Supreme Court. Id. at *4.
This Court must also examine whether Petitioner exercised reasonable diligence in bringing his claims. Respondents do not address this argument. The timeline in Petitioner's PCRA case shows that he appealed to the Superior Court from a December 20, 2002 PCRA court order denying his PCRA petition. He alleges that he had no knowledge of the Superior Court's December 31, 2003 affirmance of the denial of his PCRA petition until July 8, 2004. Presumably, Petitioner made his first inquiry about his PCRA appeal approximately one month prior to his receipt of the docket sheets. Thus, Petitioner's one-year AEDPA time period expired on May 25, 2004, and he did not inquire or take any action until approximately one month later, or until June, 2004. There was no activity on Petitioner's part from December 20, 2002 through approximately June, 2004. Further, one additional month passed between the time that Petitioner received the docket sheets from the Superior Court and his signing the instant habeas Petition. Based on these facts, Petitioner's failure to protect his rights does not warrant application of equitable tolling. The Petition is therefore time-barred, and I make the following: