Opinion
CIVIL ACTION NO. 03-3574
December 10, 2003
REPORT AND RECOMMENDATION
Currently pending before the Court is Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a petitioner incarcerated in the state correctional institution at Huntingdon, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
In April of 1996, petitioner was arrested and charged in connection with a robbery and shooting occurring in October of 1994. Following a jury trial, presided over by the Honorable Jane Cutler Greenspan of the Philadelphia Court of Common Pleas, petitioner was convicted, in April of 1997, of second-degree murder, robbery, burglary, possession of an instrument of crime and criminal conspiracy. Thereafter, Judge Greenspan sentenced him to a term of life imprisonment on the murder conviction, together with a consecutive term of five to ten years on the criminal conspiracy conviction, and a concurrent term of two and a half to five years for the possession of an instrument of crime conviction.
Petitioner appealed to the Pennsylvania Superior Court, who dismissed the matter on February 6, 1998 for failure to file a brief. Pursuant to petitioner's pro se request, Judge Greenspan reinstated his direct appeal rights and petitioner presented the following claims to the Pennsylvania Superior Court: (1) denial of effective assistance of counsel due to counsel's failure to object to hearsay testimony and (2) prosecutorial misconduct for eliciting testimony about petitioner's possession of a gun prior to the crime. On September 14, 1999, the Superior Court affirmed the judgment. Commonwealth v. Bowman, 747 A.2d 409 (Pa.Super. 1999). Petitioner did not request allowance of appeal from the Pennsylvania Supreme Court.
On August 30, 2000, petitioner filed a petitioner under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. Although the PCRA court appointed counsel to assist petitioner, he objected and sought to proceed pro se. Following a hearing, the court, on August 1, 2001, granted petitioner's request and allowed counsel to withdraw. In accordance with this ruling, petitioner was given thirty days from his receipt of the Notes of Testimony from his trial to file a new petition. On August 3, 2001, August 23, 2001 and September 5, 2001, petitioner filed motions requesting complete Notes of Testimony for his trial and the complete quarter sessions files for his co-conspirator Michael Lemon. He received the Notes of Testimony for his own trial on September 10, 2001. Subsequently, on October 9, 2001, plaintiff filed a motion for extension of time to amend his PCRA petition, explaining that he still needed discovery materials, including records from Michael Lemon's case. The PCRA court never ruled on this motion, but rather, on October 22, 2001, issued an order, pursuant to Pennsylvania Rule of Criminal Procedure 907, indicating its intent to dismiss the petition without a hearing within thirty days and inviting petitioner to respond in that time. On November 5, 2001, the petitioner submitted a letter response, enclosed his three previous motions, and indicated that he had not yet filed a petition because he was waiting for a ruling from the court regarding his requests for materials and for an extension of time.
When no supplemental petition raising the claims for consideration was forthcoming, the PCRA court issued an order, dated November 30, 2001, dismissing the PCRA petition for failure to timely prosecute. By way of footnote in that order, the court addressed plaintiff's October 9, 2001 letter and enclosed motions as follows:
This Court acceded to defendant's request to proceed pro se and has afforded him ample time to pursue his claims. Moreover, he is not entitled to removal of any Quarter Sessions file let alone that of a co-defendant. If he wanted such access he should have remained with his court appointed counsel.
PCRA Opinion (2001) at 2, n. 1. Thereafter, on December 11, 2001, petitioner belatedly filed a formal response to the Rule 907 notice. Receiving no relief from the PCRA court, petitioner then timely appealed to the Pennsylvania Superior Court. On December 5, 2002, the Superior Court affirmed the PCRA court's ruling, finding that he was allowed "ample time" to file his petition and that his "requests for documentation other than notes of testimony pertinent to his own case were properly denied." Commonwealth v. Bowman, 817 A.2d 1173 (Pa.Super. 2002). Petitioner sought allocatur from the Pennsylvania Supreme Court, challenging the PCRA court's failure to provide him with transcripts and failure to properly docket his motions for extension of time. The Supreme Court denied allocatur on May 6, 2003. Commonwealth v. Bowman, 823 A.2d 143 (Pa. 2003).
On June 11, 2003, petitioner filed his original Petition for Writ of Habeas Corpus, alleging as follows:
1. Ineffective assistance of trial counsel for:
a. Failure to impeach an officer with a documented police report;
b. Failure to file a written notice of alibi defense prior to trial;
c. Failure to suppress hearsay evidence;
d. Omitting a request for various points of charge for a limiting as well as a cautionary instruction regarding the officer's inconsistent identification;
2. Ineffective assistance of appellate counsel for failing to raise the issues of trial counsel's ineffectiveness;
3. PCRA court error in denying his right to effectively proceed pro se;
4. PCRA court error in denying his requested discovery;
5. Denial of access to courts.
In addition, he submitted a memorandum of law in support of this petition, arguing as follows:
1. Denial of ineffective assistance of counsel for failure to object to inadmissible hearsay testimony;
2. Denial of right to a fair trial due to prosecutorial misconduct which consisted of eliciting inadmissible testimony from a witness as to petitioner's alleged possession of a gun at a time prior to the incident in question;
3. Denial of right to self-representation during post-conviction proceedings when PCRA Judge Greenspan refused to answer any discovery motions because of petitioner's self-representation;
4. Petitioner was denied his right to meaningful and adequate access to the courts by SCI-Huntingdon's restrictive housing unit policy.
Respondent now contends that the entire petition should be dismissed either on timeliness grounds or on procedural default grounds. Having considered the opposing arguments, the Court turns to a discussion of the case before us.
II. TIMELINESS
Respondent's first argument claims that the instant petition is time barred. Specifically, it asserts that although his PCRA petition tolled the statute of limitations, the limitations period resumed running after dismissal by the PCRA court. Thereafter, petitioner failed to file his habeas petition in the appropriate time set forth by the federal statute. In light of the relevant jurisprudence, we find merit to this contention.
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 one-year subsequent to the effective date to commence a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Superior Court affirmed his conviction. See 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). As this event occurred after the effective date of the AEDPA, petitioner had one year from that time, i.e. until October 13, 2000, to file a federal petition for writ of habeas corpus. Because petitioner did not submit his habeas petition until June 11, 2003, we must inquire whether he may benefit from statutory or equitable tolling.
In the case at bar, petitioner's judgment became final on October 14, 1999, thirty days after the date when the Pennsylvania 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 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 di1igence.28 U.S.C. § 2244(d)(1). As petition has not alleged any facts indicating that any of these other starting points should be used, the Court does not consider them.
See Pa. R. App. P. 903 (giving thirty days in which to appeal).
A. Statutory Tolling
The text of the AEDPA creates a tolling exception to the federal statute of limitations, 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 rules governing time and place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). If petitioner files an out-of-time application and the state court dismisses it as either time-barred or waived, then it is not deemed to be a "properly-filed application." Merritt v. Blaine, 326 F.3d 157, 165-166 (3d Cir. 2003), cert. denied, 124 S.Ct. 317 (2003); Cohen v. District Attorney for Philadelphia County, Civ. A. No. 98-136, 1999 WL 358966, *3 (E.D. Pa. June 4, 1999). Notably, § 2244(d)(2) of the AEDPA excludes from the one year period only the time that a properly filed collateral attack is actually under submission. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104, 120 S.Ct. 1846 (2000) ("AEDPA's statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case `pending' during that interval."); Flanaqan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998) ("Under the plain language of the statute, any time that passed between the time that [petitioner's] conviction became final and the time that his state application for habeas corpus was properly filed must be counted against the one year period of limitation.").
Three-hundred and twenty-one days into his one year limitations period, on August 30, 2000, petitioner filed his first PCRA petition, thereby tolling the running of the statute of limitations. As noted above, on August 1, 2001, the PCRA court permitted petitioner to withdraw the amended petition filed on his behalf by appointed counsel and allotted him thirty days upon his receipt of the Notes of Testimony to file a new petition raising all claims at issue. Although petitioner filed motions requesting quarter sessions files and seeking extensions of time, he never filed a new PCRA petition. The dispositive issue for this Court, then, is whether, subsequent to the PCRA court's November 30, 2001 dismissal of his collateral petition for failure to timely prosecute, the statute of limitations remained tolled until the ultimate denial of allocatur by the Pennsylvania Supreme Court, or whether the statute simply resumed running after that date.
In Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003), the Third Circuit clarified its position on what constitutes a "properly filed" petition for state post-conviction relief, as used in 28 U.S.C. § 2244(d)(2). In that case, the petitioner filed a second PCRA petition outside the time limits set forth in the state statute, but asserted that it fell into one of the statutory exceptions to the limitations period. Id. at 159-160. The PCRA court declined to apply the exception and dismissed the petition as untimely — a decision which was affirmed by the Superior Court. Id. at 160. Facing timeliness issues upon filing his habeas corpus petition, petitioner asserted that a state PCRA petition that is deemed untimely by a state court may still be "properly filed" under the habeas statute, if a state statute provides and petitioner asserts a statutory exception. Id. at 164. The Third Circuit rejected this argument, indicating that it was bound by its earlier holding in Fahy v. Horn, "that an untimely PCRA petition does not toll the statute of limitations for a federal habeas corpus petition." Id. at 165 (quoting Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944, 122 S.Ct. 323 (2001)). The court further explained that "when applying AEDPA, we must look to state law governing when a petition for collateral relief is properly filed' and `defer to a state's highest court when it rules on an issue.'" Id. (quoting Fahy, 240 F.3d at 243-244). As the state court in Merritt found that the PCRA petition was untimely and did not fall into any of the statutory exceptions, the Third Circuit determined it to be not "properly filed" for statutory tolling purposes. Id. at 165-166
The Third Circuit reaffirmed this stance in Stokes v. Vaughn, ___ F. Supp.2d ___, 2003 WL 22741357 (3d Cir. Nov. 17, 2003). The petitioner, in that case, filed a "Petition for Permission to Petition for Allowance of Appeal (Nunc Pro Tune)", together with a proposed Petition for Allowance of Appeal Nunc Pro Tune. Id. at *2. The Pennsylvania Supreme Court denied allocatur on the former petition. Id. The Third Circuit read this order to mean that the petition was "improperly filed" for purposes of the federal statute of limitations.Id. at *4. Consequently, it determined the petitioner's one-year limitations period was not tolled during the time that petitioner's untimely petition for permission to appeal nunc pro tunc was pending in the Pennsylvania Supreme Court, thereby making his current habeas petition untimely. Id.
In light of this binding case law, this Court has no choice but to find that statutory tolling does not save the current habeas petition from being untimely. The PCRA court dismissed petitioner's pending PCRA petition on November 30, 2000 for failure to timely prosecute and to put forth claims for the court's consideration. At this juncture, petitioner had no pending petition for collateral relief. The PCRA court's ruling was then affirmed by both the Pennsylvania Superior Court and the Pennsylvania Supreme Court, thereby precluding any future efforts by petitioner to put forth substantive PCRA claims. Consequently, there was no "properly filed" petition after November 30, 2001, and petitioner's federal statute of limitations continued running on December 1, 2001. As petitioner only had 44 days left on his one year limitations period, he had to file a habeas corpus petition by January 14, 2002. Having failed to do so, his current petition must be deemed untimely.
Respondent actually contends that the statute of limitations should have resumed running on August 2, 2001, after the PCRA court permitted the petition to be withdrawn. We note, however, that this order of the PCRA court did not actually terminate the pendency of the action. Rather, the PCRA petition was ultimately dismissed on November 30, 2001 for failure to timely prosecute. As such, we now inquire whether, after that date, the petition remained properly filed.
B. Equitable Tolling
One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling. Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Equitable tolling should be used "only sparingly," United States v. Midaley, 142 F.3d 174, 179 (3d Cir. 1998), and is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Miller, 145 F.3d at 618 (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, 773 (3d Cir.), cert. denied, 123 S.Ct. 2617 (2003). In addition, equitable tolling is warranted where the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that he had done everything required of him.Jones, 195 F.3d at 159. "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). To otherwise apply equity would "loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
Petitioner, although not explicitly arguing that equitable tolling applies, asserts that the PCRA court impeded his ability to timely file his PCRA petition — a claim which, if true, might constitute grounds for equitably tolling the statute. Specifically, he contends that, on August 30, 2000, he filed his PCRA petition, specifically expressed therein his desire to handle the matter pro se, and moved to discover the court records of his co-conspirator. Notwithstanding his unequivocally stated desire to waive his right to counsel, the PCRA court appointed counsel who filed an amended petition. Upon receipt of the amendment, petitioner indicated that he disapproved of the altered petition and sought a hearing to address the appointment of counsel. In addition, he renewed his discovery request for the co-conspirator files. Following a full on-the-record colloquy, the court permitted counsel to withdraw, ordered counsel to forward the Notes of Testimony to petitioner and ordered petitioner to file his amended brief within thirty-days of receipt of the Notes of Testimony. No decision was made on petitioner's motions to discover the co-conspirator files. Although petitioner later renewed his discovery requests and moved for extensions of time, the court offered no response. Rather, on October 22, 2001, the Court issued its Rule 907 motion. In an effort to avoid dismissal of his petition, petitioner sent a letter to the Court re-enclosing his three previous motions and indicating that he was withholding his supplemental petition because he was awaiting ruling on the motions from the court. With no further notice, however, the PCRA court dismissed his PCRA petition on November 30, 2001, and remarked that had petitioner wanted access to his requested documents, he should have remained with his court appointed counsel. This course of events, he claims, reflects that his diligent efforts to pursue his PCRA claims were thwarted by the biases of the court.
This Court is not unsympathetic to petitioner's arguments. If the state courts choose to penalize a litigant for failing to act in a timely manner, then they should, by way of example, respond to valid motions with all due speed. The PCRA court's denial of petitioner's motions via a footnote in the Order dismissing the PCRA action does not reflect expedient judicial action. Moreover, the admonition by the PCRA court that petitioner should have stayed with court-appointed counsel in order to access certain documents reflects a tone of bias towards a pro se litigant. A petitioner acting without counsel has the same entitlement to discovery as one with counsel. Indeed, we note that petitioner's briefs and motions reflect an impressive ability to communicate the substance of his claims.
That being said, however, we simply cannot find any extraordinary circumstances sufficient to justify the use of equitable tolling. Petitioner was clearly ordered to file an amended PCRA petition within thirty days of his receipt of his Notes of Testimony. By his own concession, he received the Notes of Testimony from his trial on September 10, 2001, thereby starting the thirty day time period. Notwithstanding that petitioner's time limit expired on October 10, 2001, the PCRA court waited until October 22, 2001 to issue an order indicating that the original and amended PCRA petitions would be dismissed without a hearing within thirty days for failure to timely prosecute. Despite clear notice from the court that he faced dismissal if he did not submit his amended petition, petitioner opted to persist in pursuing his discovery motions and his requests for extensions of time. Again, the PCRA court gave petitioner the benefit of the doubt and waited thirty-eight days, until November 30, 2001, to ultimately dismiss the petition. At that point, petitioner had had a total of approximately eighty days from his receipt of the Notes of Testimony in which to file his PCRA petition.
Again, we respect that petitioner hoped to obtain other discovery prior to filing an amended petition. He chose, however, to disregard an explicit order from the state court mandating that he either submit a new petition or lose his opportunity to do so. These facts do not give rise to any extraordinary circumstances wherein the state court either misled petitioner or prevented him from submitting a timely filing. In light of the admonition from the Third Circuit that equitable tolling should be used "only sparingly," we cannot justify making an exception for this petitioner.
We note that the Pennsylvania Superior Court considered this precise argument from petitioner and held that the PCRA court did not err in dismissing the petition for failure to timely prosecute. It specifically concluded that petitioner "was allowed ample time within which to file his petition and did not do so. His requests for documentation other than notes of testimony pertinent to his own case were properly denied." Pursuant to the habeas statute, we should defer, absent clear and convincing evidence to the contrary, to the Pennsylvania courts' characterizations of the state PCRA proceedings. See Williams v. Lavan, Civ. A. No. 03-0424, 2003 WL 22006796, *4 (Aug. 20, 2003) (citingDuncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001)).
In an alternative argument, petitioner contends that, when he received the October 22, 2001 notice from the PCRA court regarding the impending dismissal of his petition, he was housed in the restrictive housing unit ("RHU") at the prison. He asserts that because the guards would not permit him to attend the law library and his requests to the paralegal went unanswered, he had no access to necessary legal material and could not respond to the PCRA court in a timely manner.
This assertion does not support his claim for equitable tolling. As a primary matter, we note that his alleged restricted access to the law library affected only the filing of his PCRA petition, not the filing of his habeas petition. Accordingly, the inquiry into whether this restricted access improperly interfered with his ability to timely file a PCRA petition is a factual issue which should have been put to and decided by the Pennsylvania Superior Court. Nonetheless, petitioner did not raise this argument to either the Pennsylvania Superior Court or Pennsylvania Supreme Court.
Moreover, a "lockdown and limited library access alone do not support a finding that the statute must be equitably tolled. Rather, petitioner must show that these circumstances actually impeded his ability to file a timely petition." Perry v. Vaughn, Civ. A. No. 02-839, 2003 WL 22391236, *4 (E.D. Pa. Oct. 17, 2003) (quoting Ego-Aguirre v. White, Civ. A. No. 98-3723, 1999 WL 155694, *2 (N.D. Cal. March 12, 1999).
Petitioner has failed to make any such showing. First, he neglects to set forth any factual detail as to precisely how long he was in the RHU and, therefore, we have no indication how long this alleged restricted access endured. Second, petitioner was not under any kind of restricted access from at least September 10, 2001, when he received the Notes of Testimony, until October 9, 2001, the day before his initial filing deadline, when he renewed his request for discovery and moved for an extension of time. Yet, petitioner puts forth no reason for failing to engage in the necessary legal research during that time period. Third, we note that petitioner had previously submitted a pro se PCRA petition. He has made no showing that his amended claims were going to be so legally different from his original claims that a limited period of access to the law library precluded him from submitting a new petition. Finally, notwithstanding his alleged restricted access, petitioner was able to submit a letter, dated November 5, 2003, responding to the Rule 907 motion. Having been able to do so, he fails to explain how he was simultaneously prevented from filing an amended PCRA petition.
Our review of the exhibits accompanying petitioner's brief in support of his habeas petition suggest that petitioner was purportedly in the RHU between at least October 22, 2001 and November 5, 2001, since his letter dated November 5, 2001 so indicates. As of his December 26, 2001 "Response to Notice of Disposition Without Hearing," however, petitioner report that he was released from the RHU.
In short, this Court simply cannot invoke its equitable tolling powers to excuse petitioner's untimely filing of his petition for habeas corpus. While we again acknowledge that the PCRA court, in failing to promptly rule upon petitioner's requests for discovery and for extensions of time to file, did not serve petitioner well, we cannot find that extraordinary circumstances influencing petitioner's ability to act in a timely fashion were present. Likewise, petitioner makes no showing that his incarceration in the RHU had any impact on the timeliness of his legal action. As such, we must dismiss the instant petition for failure to file within the prescribed statute of limitations.
Therefore, I make the following: