Opinion
Civil Action No. 03-6020.
April 27, 2004
REPORT AND RECOMMENDATION
Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Sean Carlos Burke ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Pittsburgh, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed.
I. FACTS AND PROCEDURAL HISTORY
The Pennsylvania Superior Court summarized the facts of this case as follows:
On January 30, 1990, [Petitioner] and three [3] other men entered the 318 Bar, located at the corner of 59th and Delancey Streets in Philadelphia. They left the bar only after a short time and proceeded across the street to the front of the Red Onion Bar. Shortly thereafter, [Brett] Chinn emerged from the 318 Bar with a friend and they walked towards his car. Before Chinn could get into his car, three [3] men, including [Petitioner], approached and shot him at least thirteen [13] times. Chinn later died from these wounds.Commonwealth v. Burke, No. 922 EDA 2001, at 1-2 (Pa.Super. June 10, 2002).
Petitioner was tried by a jury before the Honorable John J. Poserina, Court of Common Pleas of Philadelphia County. On June 20, 1991, the jury convicted Petitioner of first degree murder, aggravated assault, criminal conspiracy, recklessly endangering another person and possessing an instrument of crime. One day later, when the jury declared that it was deadlocked on the issue of whether to impose the death sentence, the trial court sentenced Petitioner to a mandatory term of life imprisonment. On April 1, 1992, Judge Poserina denied Petitioner's post-verdict motions, reimposed the sentence of life imprisonment on the first degree murder conviction, and further sentenced Petitioner to a consecutive term of five (5) to ten (10) years of imprisonment for aggravated assault and a concurrent term of one (1) to two (2) years of imprisonment on the remaining convictions.
Petitioner appealed his judgment of sentence to the Pennsylvania Superior Court, arguing that the trial court erred in denying Petitioner's motion to suppress his confession and his motion to suppress witness identifications, and that the trial court made various evidentiary errors. By memorandum opinion dated April 13, 1993, the Superior Court affirmed Petitioner's sentence. Commonwealth v. Burke, 630 A.2d 459 (Pa.Super. 1993) (table). Petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on March 31, 1994.
On June 15, 1994, Petitioner filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq. Counsel was appointed, and on February 21, 1995, counsel filed a no merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213, 215 (Pa.Super. 1988). The PCRA court allowed counsel to withdraw and, on February 22, 1995, denied the petition as meritless.
On June 5, 1995, Petitioner filed a second pro se PCRA petition. On June 14, 1995, the PCRA court dismissed the second PCRA petition as previously litigated pursuant to Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988).
On February 15, 2000 — nearly five (5) years later — Petitioner filed a third PCRA petition, which he amended on July 25, 2000. On February 28, 2001, the PCRA court dismissed the third PCRA petition as untimely. Petitioner appealed to the Pennsylvania Superior Court, which affirmed the dismissal on June 10, 2002.Commonwealth v. Burke, 806 A.2d 457 (Pa.Super. 2002) (table). Petitioner then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on December 24, 2002. Commonwealth v. Burke, 815 A.2d 1041 (Pa. 2002) (table). On March 24, 2003, Petitioner filed a petition for writ ofcertiorari in the United States Supreme Court, which was denied on June 9, 2003.
During this time, Petitioner also filed a number of cases in the federal courts. On November 14, 2000, Petitioner filed a claim under § 1983 citing civil rights violations. On March 8, 2001, the court granted defendants' motion to dismiss and, on April 9, 2001, denied Petitioner's motion for reconsideration. Petitioner appealed to the Third Circuit, which affirmed the dismissal on January 31, 2003. Meanwhile, Petitioner filed a second 1983 action on May 18, 2001, which was dismissed by summary judgment dated April 8, 2002; and a third 1983 action on October 21, 2002, which was transferred to the Middle District of Pennsylvania by Order dated December 19, 2002. See Resp.'s Answer at Exhibit E.
In addition to the 1983 actions, Petitioner attempted to file a petition for writ of habeas corpus on July 17, 2001, but was provided with appropriate forms and instructed to complete and submit them within thirty (30) days. Petitioner failed to follow this directive, and his petition was dismissed without prejudice by Order dated October 12, 2001.
On October 30, 2003, Petitioner filed the instant pro se petition for writ of habeas corpus, arguing:
Generally, a pro se petitioner's habeas petition is deemed filed at the moment he delivers it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). Petitioner signed his habeas petition on October 30, 2003; therefore, we will assume that he presented it to prison authorities on that date.
1. Petitioner is actually innocent;
2. The omission by a court reporter of a side bar discussion prejudiced Petitioner's right to a direct appeal;
3. Prosecutorial misconduct for failing to provide the identity of a witness, "Pop Shot," to Petitioner;
4. Improper denial of trial transcripts during direct appeal;
5. Trial court error during jury instructions on motive, and ineffectiveness of counsel for failing to raise this claim on appeal;
6. Layered ineffectiveness of counsel for failing to object to various aspects of the trial court's accomplice liability charge;
7. Violation of due process when PCRA court stated facts not in the record;
8. Prosecutorial misconduct for failing to adequately convey to the defense that it would be pursuing a theory of accomplice liability, and ineffectiveness of counsel for failing to raise this claim on appeal;
9. Prosecutorial misconduct in failing to disclose the transcript from Petitioner's previous trial; and
10. Appellate court error for failing to address Petitioner's claim that the Commonwealth should have corrected alleged false testimony. On April 2, 2004, Respondents filed an answer asserting that Petitioner's claims are timebarred.II. DISCUSSION
Petitioner's claims have been re-worded and re-numbered for purposes of clarity. The court also noted that on February 4, 2004, the court granted Petitioner's pro se motion for leave to file supplemental pleadings, after which Petitioner raised five (5) additional claims.
Section 101 of the AEDPA, effective April 24, 1996, amended habeas corpus law by imposing a one (1) year limitation period to applications for writ of habeas corpus filed by persons in state custody. 28 U.S.C.A. § 2244(d)(1). Section 2244, as amended, provides that the one (1) year 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;
(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 diligence.28 U.S.C. § 2244(d)(1). The amended statute also provides that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).
In the instant case, the applicable starting point for the statute of limitations is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (citing Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999)). Petitioner's conviction became final on June 24, 1994, the deadline for filing a writ of certiorari to the United States Supreme Court on direct appeal. See Kapral, 166 F.3d at 575. Because Petitioner's conviction became final before the effective date of the AEDPA, Petitioner had until April 24, 1997 — one (1) year after the effective date — to file his federal habeas petition, plus any time during which the limitations period was tolled.
A. Statutory Tolling
Statutory tolling is not applicable in this case. As previously discussed, Petitioner's first PCRA petition was filed in June 1994 and dismissed in February 1995, and his second PCRA petition was filed in June 1995 and dismissed only days later. As a result, Petitioner's one- (1-) year grace period for filing a federal habeas petition commenced running on April 24, 1996, and it expired one (1) year later.
The ninety (90) day period during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the AEDPA limitations period. Stokes v. District Att'y of the County of Phila., 2001 WL 387516, at *4 (3d Cir. April 17, 2001).
On February 15, 2000, Petitioner filed his third PCRA petition, which was dismissed as untimely on February 28, 2001. The third PCRA petition did not trigger statutory tolling because it was filed almost three (3) years after the AEDPA limitations period had run. In any event, because Petitioner's third PCRA petition was dismissed as untimely, it did not toll the running of the AEDPA statute of limitations. See Merritt v. Blaine, 326 F.3d 157, 166-167 (3d Cir. 2003) (holding untimely PCRA petition not "properly filed" for purpose of AEDPA tolling provision, and federal courts are bound by state court's finding that PCRA petition was untimely); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (same). Petitioner does not assert that there has been an impediment to filing his habeas petition which was caused by state action; that his petition involves a right which was newly recognized by the United States Supreme Court; or that there are new facts which could not have been previously discovered. See 28 U.S.C. § 2244(d)(1)(B)-(D). Consequently, Petitioner would be barred from presenting his claims under § 2254, unless the instant petition is subject to equitable tolling.
To the extent that Petitioner argues that the identity of witness "Pop Shot" and/or the testimony of David Thompson constituted "facts which could not have been previously discovered," the court disagrees for the reasons discussed in the context of equitable tolling, infra.
B. Equitable Tolling
The Third Circuit has determined that the one (1) year period of limitation for § 2254 is subject to equitable tolling because this limitation period is a statute of limitations and not a jurisdictional bar. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (in considering a motion for extension of time to file petition for writ of habeas corpus, district court must apply equitable principles in applying the one (1) year limitation period). Equitable tolling is proper only "in the rare situation where [it] is demanded by sound legal principals as well as the interests of justice." Jones v. Morton, 195 F.3d 153, 159 (1999) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). The Third Circuit has set forth two (2) general requirements for equitable tolling: "(1) that `the petitioner has in some extraordinary way been prevented from asserting his or her rights;' and (2) that the petitioner has shown that `he or she exercised reasonable diligence in investigating and bringing [the] claims.'" Merritt, 326 F.3d at 168 (quoting Fahy, 240 F.3d at 244). The Third Circuit has also identified three (3) circumstances where equitable tolling may be appropriate: (1) where the petitioner has been actively misled, (2) where petitioner has `in some extraordinary way' been prevented from asserting his rights, or (3) where petitioner has timely asserted his rights mistakenly in the wrong forum. Johnson v. Hendricks, 314 F.3d 159, 162 (3d. Cir. 2002); Jones, 195 F.3d at 159.
Petitioner does not explicitly raise any arguments for equitable tolling. However, Petitioner argued before the state courts that the "newly" discovered identity of "Pop Shot" and the "newly" discovered testimony of David Thompson should have excused the untimeliness of his third PCRA petition. Because these same arguments could conceivably apply in the context of the instant federal habeas petition, these reasons will be discussed seriatim.
1. "Newly" discovered identity of "Pop Shot"
Petitioner argued before the state courts that the identity of an allegedly favorable witness, "Pop Shot," was concealed from him and, therefore, the untimeliness of his third PCRA petition should have been excused. In considering this issue, the Pennsylvania Superior Court stated the following:
In January 2000, [Petitioner] received an affidavit from Nathan Chandler detailing "Pop-Shot's" identity and the Commonwealth's knowledge of his identity and last known address from a previous criminal case. On February 16, 2000, [Petitioner] filed his third PCRA petition, alleging several claims of ineffective assistance of counsel and claims allegedly based on new evidence withheld by the Commonwealth. Specifically, he claims that he was deprived of a fair trial because the Commonwealth failed to notify him of the identity and whereabouts of "Pop-Shot," who might have been able to impeach [Jerome] Gray's testimony. . . .
The PCRA court issued an order on February 28, 2001, dismissing this petition as untimely. [Petitioner] filed the instant appeal, in which he contends that his petition comes within the government interference and newly discovered evidence exceptions to the [PCRA's] timeliness requirements. . . . Specifically, he argues that the identity of "Pop-Shot" and the transcripts of Gray's previous testimony against [Petitioner] qualify as newly discovered evidence, which did not become available sooner due to government interference. After thoroughly reviewing [Petitioner's] petition and amended [PCRA] petition, we find these exceptions inapplicable.
* * * *
[Petitioner] was aware of this basis of this argument during trial and shortly thereafter. He knew that this potential witness existed and that the government did not turn over his identity. The fact that he was not aware of "Pop-Shot's" identity did not prevent him from raising this claim on direct appeal.
In addition, [Petitioner] has failed to show that, by exercising due diligence, he could not have obtained "Pop-Shot's" identity earlier. According to [Jerome] Gray, "Pop-Shot" had been in the 318 Bar two [2] days before the shooting. By questioning bar patrons and other individuals in that neighborhood, [Petitioner's] counsel should have been able to learn his identity. [Petitioner] has provided no evidence that he exercised such due diligence and was unsuccessful. . . .Commonwealth v. Burke, No. 922 EDA 2001, 3-7 (Pa.Super. June 10, 2002) (citations to state law omitted).
Applying the state court's analysis to the requirements for tolling under the AEDPA, it is clear that Petitioner cannot show that the he was "in some extraordinary way" prevented from asserting his rights, or that he exercised reasonable diligence in investigating and bringing the claims. See Merritt, 326 F.3d at 168. For example, there is no evidence that the Commonwealth impeded the discovery of "Pop Shot;" in fact, the witness presumably could have been discovered simply by interviewing witnesses at the bar in question. In any event, Chandler's affidavit (which was allegedly the source of "Pop Shot's" identity) is dated January 24, 2000, which means that Petitioner was aware of "Pop Shot" by at least that date. Therefore, even if the court were to toll the running of the AEDPA statute of limitations until that date, Petitioner's habeas petition would still be time-barred by nearly three (3) years. As a result, I conclude that Petitioner is not entitled to equitable tolling on this basis.
2. "Newly" discovered testimony of David Thompson
Petitioner has also argued that the "newly" discovered testimony of David Thompson should excuse the running of the statute of limitations in the context of his third PCRA petition. Specifically, Petitioner asserted before the state courts that he did not learn of the identity of this witness until 2000. However, as with the identity of "Pop Shot," Petitioner has not shown that this witness was not discoverable until nine (9) years after his trial. In addition, Petitioner has not asserted that the Commonwealth impeded the discovery of witness Thompson, or that the state even knew about the witness. Finally, Thompson's affidavit is dated March 24, 2000, which means that Petitioner was aware of the alleged witness by at least that date. Therefore, even if the court were to toll the running of the AEDPA statute of limitations until that date, Petitioner's habeas petition would still be time-barred by more than two (2) years.
For all of the aforementioned reasons, I do not find the instant matter to be one of "rare situation[s] where equitable tolling is demanded by sound legal principals as well as the interests of justice." See Jones, supra. Because Petitioner has not established "extraordinary circumstances" which would justify application of equitable principles, this court finds that there are no circumstances which would make the rigid application of the limitation period unfair. Accordingly, the instant petition should be dismissed as untimely.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and Respondents' answer thereto, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.