Opinion
Civil Action No. 03-6923.
May 13, 2004
REPORT AND RECOMMENDATION
Presently before this court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Maurice Brown ("Petitioner") currently is incarcerated at the State Correctional Institution at Graterford, Pennsylvania. Petitioner seeks habeas relief based on ineffective assistance of counsel and trial court errors. See Petition for Writ of Habeas Corpus ("Pet.") at 9-10. The Honorable Jan E. Dubois referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, Petitioner's time-barred claims should be dismissed, without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts in this background and procedural history were obtained from Petitioner's Petition for Writ of Habeas Corpus and Memorandum in Support, Commonwealth's Response to Petition for Writ of Habeas Corpus, Petitioner's Rebuttal to Commonwealth's Response inclusive of all exhibits, and the record of the state court.
The facts leading up to Petitioner's arrest and conviction, as summarized by the Pennsylvania Superior Court, are as follows:
At 11:00 p.m., December 12, 1979, Philadelphia Police Officer Richard Willis, while off duty, was walking with Joseph Thompson on 49th Street near Baltimore Avenue in Philadelphia. Willis and Thompson saw a group of four black males approaching a short distance away. [Petitioner] and another male were each holding by the arm a third person standing between them, while the fourth male walked behind the man held in the middle. The group came to within 15 feet of Willis and Thompson, then entered an alley. Immediately, Willis and Thompson heard repeated gun shots. Willis drew his revolver, peeked around the corner of the alley, and saw one male laying face down on the pavement and the other three running towards the opposite exit. Willis spotted other police officers in a car and told them to block the other end of the alley.
The officers in the car, Robert Prendergast and James DeAngelo, had also heard the gunshots in the alley. After receiving Willis' directions, they drove to the back exit of the alley, where they saw three males, including [Petitioner] running from the alley. They stopped the car and Prendergast yelled, "Police, freeze." DeAngelo got out of the car and also shouted, "Freeze, police, stop, I will shoot." When [Petitioner] continued to flee, DaAngelo set off on foot in pursuit of him while Prendergast chased the other two males, who chose a different direction. [Petitioner] darted behind a van. DeAngelo, who had his gun, again yelled, "Stop, I will shoot." DeAngelo came up along the van and caught [Petitioner], who was sweating and out of breath. The officer placed handcuffs on [Petitioner] and returned him to the car. Officer Prendergast failed to catch the other two males.
The officers drove back to the scene of the crime, arriving just a few minutes after the shooting. Willis and Thompson, without first speaking with either of the officers in the car, immediately recognized [Petitioner] and identified him as one of the males who had escorted the victim to the alley. A later search revealed a .38 caliber revolver near the alley and a glove. The victim, Robert Williams, died of 11 gunshot wounds of the head, face, trunk, right arm and leg and left arm.Commonwealth v. Brown, No. 1022 at 2-3 (Pa.Super.Ct. June 4, 1982) (citations omitted).
On September 12, 1980, Petitioner, before a jury, was convicted of murder of the first degree, criminal conspiracy, and possession of an instrument of crime. See id. at 1. Following the denial of post-verdict motions, the Honorable Edwin S. Malmed, sentenced Petitioner to concurrent terms of imprisonment of life for murder of the first degree, 10 to 20 years for conspiracy, and 2½ to 5 years for the weapon offense. See id.; see also Respondent's Brief ("Resp.") at 3.
Petitioner appealed his convictions to the Superior Court of Pennsylvania alleging the following:
1. Was the evidence legally insufficient as a matter of law to sustain the verdicts of guilty as to murder in the first degree, possessing instruments of crime, and criminal conspiracy?
2. Was [Petitioner] deprived of his constitutional right to the effective assistance of counsel by the failure of defense counsel to interview critical defense witnesses which concommitantly also prevented counsel from making informed decision as to whether [Petitioner] should testify on his own behalf?
3. Was [Petitioner] deprived of his constitutional right to the effective assistance of counsel by the failure of defense counsel to object to the charge of the court on the proper consideration by the jury of [Petitioner's] statement to the police and by the failure of defense counsel to submit a corrective instruction?
4. Was [Petitioner] deprived of his constitutional right to the effective assistance of counsel by the failure of defense counsel to submit requests for jury instructions on the legal principles that `mere presence' at the scene of the crime or that `mere flight' are insufficient evidence to support guilty verdicts?
5. Was [Petitioner] deprived of his constitutional right to the effective assistance of counsel by the failure of defense counsel to properly object to the incomplete charge of the court on identification evidence and the extremely damaging comment of the court that `You have heard testimony identifying this [Petitioner] as one of the persons who committed the crime?'
6. Was defense counsel constitutionally ineffective when he abandoned any effort to litigate the motion to suppress identification evidence?Brown, No. 1022 at 3-4. On June 4, 1982, the Superior Court affirmed judgment of sentence. See id. at 1-10.
On August 2, 1982, Petitioner filed an application for allacatur, but the Pennsylvania Supreme Court denied it on October 29, 1982, see Commonwealth v. Brown, No. 460 ( Pa. 1982), and on August 19, 1982, reargument was denied. See Resp. at 3. Accordingly, Petitioner's convictions became final on January 27, 1983, when his ninety day period to file a writ for certiorari in the United States Supreme Court expired.
Petitioner's initial federal habeas corpus petition, see Brown v. Zimmerman, et. al., E.D. Pa. Dkt. No. 84-4184, was dismissed, without prejudice, for failure to exhaust state court remedies. On October 31, 1986, this dismissal was affirmed by the Third Circuit Court of Appeals. See Brown v. Zimmerman, et al., Dkt. No. 86-1529 (3d. Cir. 1986).
Petitioner, after more than seventeen years, filed the instant petition, on December 30, 2003. He alleges, inter alia:
1. [d]eprivation of the right of appellate review and effective representation by counsel.
2. [f]ailure to follow explicit statutory procedures to correct [the] charge of the court.
3. [that] trial counsels actions created "equitable tolling" to excuse [the] "statute of limitations."
4. [f]raud on the court.
Pet. at 9-10. Following careful review of the record, this court concludes that Petitioner's late claims are unreviewable.
II. DISCUSSION
A. AEDPA Statute of LimitationsThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, generally requires that all habeas corpus petitions be filed within one year of the date on which a state court judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). A state judgment of conviction is final once direct review is concluded or the time for seeking such review has expired. See id. Any time which elapses between the issuance of a final judgment and institution of a petition for state collateral review is subtracted from the allotted year. See Swartz v. Meyers, 204 F.3d 417, 419 n. 2 (3d Cir. 2000).
While the date on which the petitioner's conviction becomes final is typically the "run" date for the limitations period, see 28 U.S.C. § 2244(d)(1), the statute also permits the limitation period to run from the latest of several events:
(d)(1)(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 State 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)(B)-(D).
Petitioner's conviction became final on or about January 27, 1983, when his deadline to file for U.S. Supreme Court review expired. However, since Petitioner's conviction became final before the effective date of AEDPA, he was granted a one-year grace period, or until April 24, 1997, to seek federal habeas relief. See Burns v. Morton, 134 F.3d 109 (3d Cir. 1998). He did not file a petition for Writ of habeas corpus before the AEDPA deadline expired.
Nevertheless, in appropriate instances, statutory or equitable tolling provisions could extend the initial AEDPA deadline. See Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001). For example, if, prior to expiration of the full AEDPA year, petitioner sought collateral relief, "[t]he time during which [that] properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim [was] pending [would] not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). Petitioner never sought collateral relief, thus, the foregoing ground for statutory tolling is unavailable to him.
Equitable tolling potentially could excuse Petitioner's delay. The Third Circuit has held that the one-year period of limitation in § 2254(d)(1) is a statute of limitations, not a jurisdictional bar. See Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). District courts may equitably toll the one-year period of limitation:
. . . when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Generally, this will occur when the petitioner has "in some extraordinary way . . . been prevented from asserting his or her rights." 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 (alterations in original) (citations omitted). In determining the applicability of the above guidelines, it is appropriate to examine factors such as ignorance of the rules of procedure, Petitioner's credibility as to the reason for the delay, any lack of diligence, efforts toward compliance, and an understanding of the consequences of dilatory behavior. See U.S. v. Diaz, Civ.A. 95-5616, 1999 WL 391384 at *2 (E.D.Pa. May 27, 1999); see also U.S. v. Ramsey, No. 92-590-2, 1999 WL 718079 (E.D.Pa. Aug. 26, 1999). Specifically, equitable relief will be permitted: if (1) 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 mistakenly in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted) (emphasis supplied).
Application of Miller criteria to the facts of this case does not entitle Petitioner to equitable relief. He has failed to allege or demonstrate that any "extraordinary circumstance" external to himselfunfairly prohibited compliance with AEDPA's time limitation. No government agent misled Petitioner as to filing requirements or prevented him from asserting his rights. Moreover, he did not timely file this petition in an incorrect forum. Furthermore, Petitioner has failed to evince recently discovered facts or otherwise allege that he exercised "reasonable diligence" in investigating and pursuing his federal claims. Contrariwise, Petitioner delayed filing his second habeas petition seventeen years beyond Third Circuit affirmance of dismissal (i.e. no activity whatsoever between October 31, 1986 and December 30, 2003). Finally, no change in federal Constitutional law necessitates late review of this petition. The record, devoid of factual justification for equitable tolling, warrants dismissal on procedural grounds, without a hearing.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 13th day of May 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that Petitioner's time-barred Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED without an evidentiary hearing. Petitioner has not met the procedural requirements to have his petition reviewed; therefore, he has not shown a denial of a constitutional right. Consequently, a certificate of appealability should not be issued.