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BIVINS v. KLEM

United States District Court, E.D. Pennsylvania
Dec 28, 2004
Civil Action No. 04-4251 (E.D. Pa. Dec. 28, 2004)

Opinion

Civil Action No. 04-4251.

December 28, 2004


REPORT AND RECOMMENDATION


Currently pending before the Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner who is currently incarcerated at the State Correctional Institution Mahanoy in Frackville, Pennsylvania. For the reasons which follow, the Court recommends that the petition be denied and dismissed.

I. PROCEDURAL HISTORY

Following a non-jury trial in the Philadelphia County Court of Common Pleas, with the Honorable John J. Chiovera presiding, petitioner was convicted on January 22, 1993 of rape, involuntary deviate sexual intercourse, corruption of a minor, indecent exposure, attempted statutory rape, indecent assault, terroristic threats, and simple assault. Judge Chiovera sentenced petitioner to an aggregate of six to twenty years imprisonment on October 27, 1993. Petitioner filed a direct appeal in the Superior Court on November 27, 1993 and the Court upheld petitioner's judgment of sentence in a memorandum opinion on June 20, 1995. Commonwealth v. Bivens, No. 3742 Phila. 1993 (Pa.Super. June 20, 1995). Petitioner did not seek allocatur from the Pennsylvania Supreme Court.

On May 28, 1996, petitioner filed a petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA). Appointed counsel filed a "no merit" letter and the PCRA court dismissed the petition on December 2, 1996. The Superior Court upheld the dismissal on October 28, 1997. Commonwealth v. Bivens, 704 A.2d 1114 (Pa.Super. 1997) (table). The Pennsylvania Supreme Court denied allocatur. Commonwealth v. Bivens, 723 A.2d 668 (Pa. 1998) (table).

Petitioner filed a second PCRA petition on May 8, 2000, which was dismissed as untimely on October 26, 2000. He did not file an appeal. He filed a third PCRA petition which was also dismissed as untimely on June 21, 2003. On June 8, 2004, the Superior Court denied petitioner's appeal and he did not seek allocatur from the Pennsylvania Supreme Court. On August 20, 2004, petitioner filed a fourth PCRA petition, which is now pending.

On September 8, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus, alleging that he was denied his right to a speedy trial and ineffective assistance of trial counsel. The Commonwealth responds that the entire petition is time-barred and must therefore be dismissed.

II. TIMELINESS

Notwithstanding petitioner's allegation of substantive grounds for relief, one procedural obstacle precludes federal review of those claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:

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. 28 U.S.C. § 2244 (d)(1) (1996). If direct review of a criminal conviction ended prior to the statute's effective date, then under Third Circuit precedent, a prisoner has a one-year grace period subsequent to the effective date of April 24, 1996 to commence a habeas action. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).

The statute also sets forth three other potential starting points for the running of the statute of limitations, as follows:

(B) the date on which the impediment to filing an application created by the 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). As the petition does not allege any facts which indicate that any of these other starting points should be used, the Court does not consider them.

The statute, however, creates a tolling exception, which notes that "[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). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). If a petitioner files an out-of-time application and the state court dismisses it as time-barred, then it is not deemed to be a "properly-filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003).

In the case at bar, petitioner's conviction became final on July 20, 1995, 30 days after the Pennsylvania Superior Court upheld his conviction. See also Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court). Petitioner therefore had a one year grace period which commenced on April 24, 1996, the effective date of the statute.

After approximately one month of the grace period had run, on May 28, 1996, petitioner filed a PCRA petition. The PCRA petition tolled the limitations period until April 1, 1998, when the Supreme Court denied allocatur from the Superior Court's affirmance of the denial of relief. He then had approximately eleven months remaining in the limitations period, giving him until approximately March 1, 1999, to file a timely petition in federal court. However, petitioner did not file the instant petition for writ of habeas corpus until September 7, 2004, almost five and a half years after his time for doing so had lapsed. Although petitioner filed subsequent PCRA petitions, they were filed after the limitations period had expired and therefore could not have acted to toll the grace period. In addition, petitioner's second and third petitions were both dismissed by the state courts as untimely and therefore would not have tolled the limitations period even if the federal grace period had not run. See Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003). As the limitations period was not further tolled and petitioner failed to seek habeas relief in an expedient manner, we must deem the instant petition untimely.

One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling, which is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair.". Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (quotation omitted). 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 (internal quotation omitted).

The Third Circuit has set forth three circumstances permitting equitable tolling: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (internal quotations omitted); see also Brown v. Shannon, 322 F.3d 768 (3d Cir.), cert. denied, 123 S. Ct. 2617 (2003). "In 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." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944, 122 S. Ct. 323 (2001) (citing cases).

Petitioner has not put forth any explanation for the over five year delay in filing his petition, let alone a reason constituting extraordinary circumstances. Consequently, we decline to exercise our equitable tolling powers and we dismiss his entire petition. We therefore, must dismiss petitioner's petition for writ of habeas corpus.

Therefore, I make the following:

RECOMMENDATION

AND NOW, this day of December, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED. There is no probable cause to issue a certificate of appealability.


Summaries of

BIVINS v. KLEM

United States District Court, E.D. Pennsylvania
Dec 28, 2004
Civil Action No. 04-4251 (E.D. Pa. Dec. 28, 2004)
Case details for

BIVINS v. KLEM

Case Details

Full title:GARY BIVINS, Petitioner, v. EDWARD KLEM, AND THE DISTRICT ATTORNEY OF THE…

Court:United States District Court, E.D. Pennsylvania

Date published: Dec 28, 2004

Citations

Civil Action No. 04-4251 (E.D. Pa. Dec. 28, 2004)