Opinion
Civil Action No. 03-CV-6020.
October 28, 2004
EXPLANATION AND ORDER
Petitioner, Sean Carlos Burke ("Burke"), brings this petition for habeas corpus under 28 U.S.C. § 2254. Presently before me are Burke's petition for a writ of habeas corpus, the report and recommendation of United States Magistrate Judge Peter B. Scuderi, and Burke's objections to the Magistrate's report. Magistrate Judge Scuderi recommended dismissing the petition as untimely under the Anti-Terrorism and Death Penalty Act's (AEDPA) statute of limitations. For the reasons that follow, I adopt the Magistrate's report, overrule Burke's objections, and dismiss Burke's habeas petition.
The report and recommendation recounts the facts and procedural history in greater detail. As Burke has not objected to this portion of the report, I only briefly summarize the factual and procedural background.
On June 20, 1991, in the Pennsylvania Court of Common Pleas of Philadelphia County, a jury convicted Burke of first degree murder, aggravated assault, criminal conspiracy, recklessly endangering another person and possessing an instrument of crime. The trial court sentenced Burke to a mandatory term of life imprisonment on the first-degree murder conviction, a consecutive term of five to ten years of imprisonment for aggravated assault, and a concurrent term of one to two years of imprisonment on the remaining convictions.
Burke appealed his judgment to the Pennsylvania Superior Court, arguing that the trial court erroneously refused to suppress his confession and certain witness identifications, as well as evidentiary errors. The Superior Court affirmed Burke's sentence on April 13, 1993. Burke filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on March 31, 1994.
On June 15, 1994, Burke filed a petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act, 42 Pa.Cons. Stat. Ann. § 9541 et seq. On February 22, 1995, the PCRA court denied his petition.
Burke filed a second PCRA petition on June 5, 1995. Nine days later, on June 14, 1995, the PCRA court dismissed this petition as previously litigated.
Almost five years after that dismissal, on February 15, 2000, Burke filed a third PCRA petition. On February 28, 2001, the PCRA court dismissed the petition as time-barred under Pennsylvania law. Burke appealed the dismissal to the Pennsylvania Superior Court, which affirmed the dismissal on June 10, 2002. The Pennsylvania Supreme Court denied Burke's petition for allowance of appeal on December 24, 2002. Burke filed a petition for writ of certiorari in the United States Supreme Court on March 24, 2003, which the Court denied on June 9, 2003.
Burke filed the present petition for writ of habeas corpus on October 30, 2003. I referred the case to Magistrate Judge Scuderi, who issued his report and recommendation on April 27, 2004, recommending dismissal on statute of limitations grounds.
II. Discussion
Burke has filed a series of objections to the Magistrate's report. I have made a de novo review of those portions of the report to which Burke objects, find the report cogently reasoned, and adopt its findings and conclusions of law.
Many of Burke's objections are directed towards the Magistrate's failure to address Burke's substantive claims. However, this is the nature of dismissal on statute of limitations grounds. The Magistrate properly did not consider Burke's substantive grounds for challenging his conviction, once he determined that the claim was time barred. I will therefore only address those objections that bear on application of the statute of limitations.
Burke primarily argues that the statute of limitations should have been tolled while he was pursuing his third PCRA petition in state court. As the Magistrate noted, however, Burke's claim was time barred even before he brought his third PCRA petition. Moreover, the Pennsylvania courts found Burke's third PCRA petition to be untimely under Pennsylvania law. Therefore, it was not "properly filed" for purposes of the AEDPA tolling provision and cannot toll the statute, even if the period had not run before its filing. See Merritt v. Blaine, 326 F.3d 157, 166-67 (3d Cir. 2003).
Second, while Burke has not explicitly raised this objection, Burke raised a claim of actual innocence in his habeas petition and refers generally to actual innocence in his objections. He could perhaps argue that the Constitution requires an actual innocence exception to the AEDPA statute of limitations. See Harper v. Vaughn, 272 F.Supp.2d 527, 534 n. 12 (E.D.Pa. 2003) (noting that some district courts have found an actual innocence exception to the AEDPA statute of limitations, while others have declined to address the issue, and that the Third Circuit and United States Supreme Court have not addressed the question). The Magistrate did not directly address this question, although did consider whether Burke's discovery of "new evidence" justified an equitable tolling of the statute of limitations. Even if the Constitution requires such an exception to the AEDPA statute of limitations, Burke has not made a sufficient showing of actual innocence to invoke the exception. In light of the evidence Burke points to, the testimony of two witnesses and the transcript of one of the prosecution witness' testimony in a different case, it cannot be said that "no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Sweger v. Chesney, 294 F.3d 506, 522 (3d Cir. 2002).
Burke's only remaining objection that is not clearly addressed in the report and recommendation is an unclear objection to the timing of the issuance of the report and recommendation. Burke appears to feel that he was not afforded ample opportunity to reply to the state's response to his petition. Even were that the case, I am confident that Burke had ample opportunity to make his objections known to me with respect to the substance of the report.
III. Conclusion
For the reasons stated above and in Magistrate Scuderi's report and recommendation, I adopt and approve the Magistrate's report and recommendation, overrule petitioner's objections, and dismiss the petition for habeas corpus. AND NOW, this ____ day of October 2004, upon consideration of Sean Carlos Burke's petition for writ of habeas corpus (Docket #1), the report and recommendation of Magistrate Judge Scuderi (Docket #16), and petitioner's objections thereto (Docket #22), it is hereby ORDERED:
1. The report and recommendation is APPROVED and ADOPTED. Petitioner, Sean Carlos Burke's objections are OVERRULED.
2. Sean Carlos Burke's petition for writ of habeas corpus is DENIED with prejudice.
3. There is not probable cause to issue a Certificate of Appealability.