Opinion
Civil Action No. 03-6923.
June 7, 2004
ORDER AND MEMORANDUM ORDER
AND NOW, this 7th day of June, 2004, upon consideration of Petition for Writ of Habeas Corpus filed by Maurice Brown (Document No. 1, filed December 30, 2003), Response to Petition for Writ of Habeas Corpus filed by respondents (Document No. 6, filed April 29, 2004), Rebuttal by Maurice Brown to Response to Petition for Writ of Habeas Corpus (Document No. 7, filed May 11, 2004), and the state court record, and after review of the Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells dated May 13, 2004, and Petitioner's Rebuttal to the Report and Recommendation of the Magistrate (Document No. 9, filed May 27, 2004), IT IS ORDERED as follows:
1. The Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells dated May 13, 2004, is APPROVED and ADOPTED;
2. Petitioner's Rebuttal to the Report and Recommendation of the Magistrate, treated as Objections to the Report and Recommendation, are OVERRULED;
3. The Petition for Writ of Habeas Corpus filed by Maurice Brown is DISMISSED WITHOUT AN EVIDENTIARY HEARING; and,
4. A certificate of appealability will not issue on the ground that petitioner has not made a substantial showing of a denial of a constitutional right as required under 28 U.S.C. § 2253(c).
MEMORANDUM
Petitioner, Maurice Brown, seeks habeas relief based on ineffective assistance of counsel and trial errors. The Magistrate Judge, in her Report and Recommendation, concluded that petitioner's claims were time-barred and should be dismissed without an evidentiary hearing. This Court agrees and writes to address petitioner's Rebuttal to the Report and Recommendation of the Magistrate which was not presented to the Magistrate Judge.
I. BACKGROUND
On September 12, 1980, petitioner was convicted by a jury of murder in the first-degree, criminal conspiracy and possession of an instrument of crime. Following denial of post-verdict motions, the Honorable Edwin S. Malmed, Court of Common Pleas of Philadelphia, sentenced petitioner to concurrent terms of imprisonment of life for murder in the first-degree, ten to twenty years for conspiracy, and two and one-half to five years for the weapons offense.
Petitioner appealed his convictions to the Superior Court of Pennsylvania. On June 4, 1982, the Superior Court affirmed the judgment of sentence. On August 2, 1982, petitioner filed an application for allocatur, which was denied by the Pennsylvania Supreme Court on October 29, 1982. Accordingly, petitioner's convictions became final on January 27, 1983, when the ninety-day period for filing a petition for writ of certiorari in the United States Supreme Court expired.
Petitioner's initial federal habeas petition was filed in 1984. Brown v. Zimmerman, et al, United States District Court for the Eastern District of Pennsylvania, Civil Action No. 84-4184. It was dismissed without prejudice for failure to exhaust state remedies. On October 31, 1986, the dismissal was affirmed by the United States Court of Appeals for the Third Circuit.
The petition presently before the Court was filed on December 30, 2003, more than seventeen years after the decision of the Third Circuit affirming the dismissal of petitioner's initial federal habeas petition
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, provides, inter alia, that all habeas corpus petitions be filed within one-year of the date on which a state court judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). Because petitioner's conviction became final on January 27, 1983, before adoption of the AEDPA, he had a one-year grace period from the effective date of the AEDPA, that is, until April 24, 1997, to seek federal habeas relief, and he did not do so.
The limitations period of the AEDPA is subject to both statutory and equitable tolling. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). Statutory tolling is permitted for "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. 28 U.S.C. § 2244(d)(2). A "properly filed" petition is one that is "submitted according to the state's procedural requirements such as the rule governing time and place for filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998).
Petitioner never sought collateral review after the effective date of the AEDPA. Thus, statutory tolling is unavailable to him.
Equitable tolling is permitted in three circumstances: "(1) if a defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; and (3) if the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum." Jones, 195 F.3d at 159. Petitioner asserts in his Rebuttal that he is entitled to equitable tolling because the prosecutor and defense counsel, and the trial judge, ". . . colluded in a deliberately planned and carefully executed scheme to fraudulently reconstruct trial transcripts." The basis of this claim appears to be a letter from the trial judge to counsel in the case dated February 4, 1982, relating to errors in the transcription of his jury charge and submission of the written charge the judge said he delivered. Based upon the letter, petitioner contends there was a "fraud upon the court."
The Court rejects petitioner's argument. In the first place, petitioner submitted no evidence to show or even suggest that the problem in the transcription of the trial judge's jury charge was anything more than that — an error in the transcription of the jury charge. The letter from the trial judge in which this came to light and with which the trial judge submitted a copy of his written jury charge was dated February 4, 1982. Copies of the letter and the written jury charge were sent to counsel. Petitioner does not attempt to explain why, under those facts, he delayed more than seventeen years in seeking federal habeas relief.
There is no basis for equitable tolling in this case. Petitioner has not alleged that he was actively misled by respondents, or that he mistakenly asserted his rights in the wrong forum. Moreover, the circumstances surrounding the improper transcription of the jury charge, and the way in which that matter was brought to the attention of counsel, does not amount to an extraordinary circumstance which prevented petitioner from asserting his rights. Significantly, petitioner has failed to present any evidence or even argue that he only recently discovered what happened with respect to the transcript of the jury charge, or that he exercised reasonable diligence investigating and pursuing his federal claims. Finally, there has been no change in federal constitutional law applicable to the case.
III. CONCLUSION
For all of the foregoing reasons, the Court overrules petitioner's Rebuttal to the Report and Recommendation of the Magistrate, treated by the Court as Objections to the Report and Recommendation, approves and adopts the Report and Recommendation, and dismisses the Petition for Writ of Habeas Corpus without an evidentiary hearing.