Opinion
1:21 -cv-292
11-03-2023
CARL EDWARD BELL, Petitioner v. MORRIS HOUSER, et al., Respondents
SUSAN PARADISE BAXTER United States District Judge.
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 8)
RICHARD A. LANZILLO United States Magistrate Judge.
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the petition for habeas corpus, ECF No. 8, be denied and that no certificate of appealability issue.
II. Report
A. Procedural history
Before the Court is a pro se petition for a writ of habeas corpus filed by Petitioner Carl Edward Bell pursuant to 28 U.S.C. § 2254. ECF No. 8. Petitioner is incarcerated at the State Correctional Institution at Benner, serving a sentence of imprisonment imposed by the Court of Common Pleas of Erie County, Pennsylvania.
A review of the record and the criminal docket sheet for Petitioner's underlying conviction in Commonwealth v. Bell, No. CP-25-CR-0001854-2016 (Erie Cnty. Com. Pl.), reveals the following relevant facts. Petitioner entered a guilty plea to one count of murder of the third degree and two counts of aggravated assault on January 20, 2017. ECF No. 10-3 at 2. On March 6, 2017, he was sentenced to an aggregate term of 30 to 60 years imprisonment. Id. Following a direct appeal, the Pennsylvania Superior Court affirmed the judgment of sentence on April 24, 2018. Id. at 3. Bell did not file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court.
On April 22, 2019, Petitioner filed a pro se petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. The PCRA court dismissed his petition on December 10, 2019, see ECF No. 10-4 at 4, and the Pennsylvania Superior Court affirmed the order dismissing the petition on November 19, 2020. See ECF No. 10-6. According to his state docket sheet, Petitioner then filed a petition for allowance of appeal with the Pennsylvania Supreme Court which was denied on September 1, 2021. See Commonwealth v. Bell, 60 WAL 2021 (Pa. 2021).
The instant petition was lodged on October 26, 2021. ECF No. 1. Respondents filed a response on April 18,2022. ECF No. 10. Although he filed several subsequent motions, Petitioner did not file a traverse. Accordingly, the petition is now ripe for review.
B. Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and 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 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.
(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.28 U.S.C. § 2244(d).
In analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1). Caldwell v. Mahally, et al., 2019 WL 5741706, *5 (W.D. Pa. Nov. 5, 2019). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to section 2244(d)(2). Id. at *6. Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. Id. at *8.
Turning first to the “trigger date,” Petitioner's judgment of sentence became final on or about May 24, 2018, at the expiration of the 30-day period in which he could have filed a petition for allowance of appeal to the Pennsylvania Supreme Court on direct review. Pa.R.A.P. 1113; 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). Unless he can demonstrate that he is entitled to statutory or equitable tolling, the statute of limitations for Petitioner to file a timely habeas petition expired one year later, on May 24, 2019.
Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a “properly filed” state post-conviction proceeding. Petitioner filed his PCRA petition on April 22, 2019, at which time 333 days of his one-year limitations period had expired. Those proceedings were “properly filed,” and, thus, tolled the statute of limitations until they were concluded on September 1, 2021, when the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal from the Pennsylvania Superior Court's order affirming the dismissal of the PCRA petition. Pa.R.A.P. 1113(a), Swartz, 204 F.3d at 420-21. At that time, Petitioner had 32 days remaining (365 days minus 333 days) in which to file his federal habeas petition. His petition, placed in the prison mailbox on October 7,2021, missed that mark by several days.
Before dismissing the petition as untimely, the Court must consider whether AEDPA's statute of limitations should be equitably tolled. See Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert, denied, 540 U.S. 826 (2003) (citing sources omitted). To receive the benefit of equitable tolling, Petitioner must demonstrate that he: (1) pursued his rights diligently, and (2) extraordinary circumstances prevented him from filing a timely petition. Holland v. Florida, 560 U.S. 631, 649 (2010). Petitioner bears a “strong burden to show specific facts” supporting equitable tolling. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)). See also Martin v. Adm'r N.J. State Prison, 23 F.4th 261, 272 (3d Cir. 2022) (noting that federal courts are to use equitable tolling sparingly and do so “only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice.”) (quoting LaCava v. Kyler, 398 F.3d 271,275 (3d Cir. 2005)).
Because Petitioner did not file a traverse, he has not made any explicit attempt to meet this burden. The Court notes, however, that Petitioner consistently states throughout his Petition that his court-appointed counsel consistently refused to advocate on his behalf or to file requested appeals. See, generally, ECF No. 8. Even if these averments, either individually or in the aggregate, could be characterized as sufficiently “extraordinary” to have prevented Petitioner from filing a timely petition, he has failed to establish that he pursued his rights diligently. As noted by the Court of Appeals for the Third Circuit, “a finding that attorney malfeasance is an extraordinary circumstance, without more, is not sufficient to warrant equitable tolling.” Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir. 2004). See also LaCava, 398 F.3d at 278 (noting that “attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the ‘extraordinary' circumstances required for equitable tolling” in non-capital cases). Rather, the petitioner must also demonstrate that he exercised “due diligence in pursuing the matter under the specific circumstances he faced.” Id. (citing Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003)). Here, Petitioner has not offered any explanation for the delay in filing his Petition or described any steps he took to diligently pursue his federal claims.
In short, Petitioner has failed to establish that this case presents the rare situation where equitable tolling is demanded by sound legal principles and the interests of justice. Accordingly, equitable tolling should not be applied. Thus, the petition is untimely and should be denied on that basis.
C. Certificate of Appealability
The Antiterrorism and Effective Death Penalty Act of 1996 codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, jurists of reason would not find it debatable whether Petitioner's claims should be denied as untimely. Accordingly, no certificate of appealability should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).