Opinion
Civil Action No. 04-3724.
October 27, 2004
REPORT AND RECOMMENDATION
Currently pending before the Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner who has been released on parole. For the reasons which follow, the Court recommends that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
Following a jury trial in the Philadelphia County Court of Common Pleas, petitioner was convicted, on January 31, 1997 of first degree murder, aggravated assault, and possession of an instrument of crime for the shooting Ricardo Rosario and wounding another man. During the trial, petitioner argued that he shot Rosario in self defense. Judge Poserina sentenced petitioner to a life sentence with a consecutive term of five to ten years imprisonment. Petitioner filed a direct appeal, which was quashed as untimely. However, as a result of his first PCRA petition, his appellate rights were restored nunc pro tunc. In a memorandum opinion, dated December 31, 1999, the Superior Court affirmed the judgment of sentence. Commonwealth v. Calderon, 750 A.2d 365 (Pa.Super. 1999). On May 25, 2000, the Supreme Court of Pennsylvania denied allocatur. Commonwealth v. Calderon, 758 A.2d 1195 (Pa. 2000).
On April 24, 2001, petitioner filed a second pro se petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA) and appointed counsel filed an amended petition on January 3, 2002. The PCRA Court dismissed the petition on November 4, 2002, without an evidentiary hearing. Petitioner appealed and argued that the court erred in not granting an evidentiary hearing regarding the witness affidavit he presented. In a memorandum opinion dated November 10, 2003, the Superior Court of Pennsylvania affirmed the dismissal. Commonwealth v. Calderon, 841 A.2d 570 (Pa.Super. 2003). On March 3, 2004, the Supreme Court of Pennsylvania denied allocatur. Commonwealth v. Calderon, 845 A.2d 816 (Pa. 2004).
On March 15, 2004, petitioner filed a third PCRA petition, which is currently listed for a status hearing on October 13, 2004. Petitioner contends that the issues raised in this petition are as follows:
1. Ineffective assistance of trial counsel for raising theory of self defense without evidence to support it and for forcing petitioner to testify, making his criminal record available to the jury;
2. Ineffective assistance of trial counsel for failing to raise or at least investigate a diminished capacity defense when he knew that petitioner had spent time in mental hospital and was on medication;
3. Ineffective assistance of trial counsel for failing to require Commonwealth to present testimony of medical examiner who performed autopsy, depriving him of right of cross examination.
On July 14, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus, alleging the following grounds for relief:
1. Ineffective assistance of trial counsel for raising theory of self defense without evidence to support it and for forcing petitioner to testify, making his criminal record available to the jury;
2. Ineffective assistance of trial counsel for failing to raise or at least investigate a diminished capacity defense when he knew that petitioner had spent time in mental hospital and was on medication;
3. Ineffective assistance of trial counsel for failing to require Commonwealth to present testimony of medical examiner who performed autopsy, depriving him of right of cross examination; and
4. PCRA Court's failure to hold an evidentiary hearing after petitioner submitted an affidavit of a witness he believed was exculpatory.
The Commonwealth responds that the entire petition is time-barred and must therefore be dismissed. Respondent also alleges that the first three claims are unexhausted and will be procedurally defaulted and that the remaining claim is not cognizable.
II. TIMELINESS
Respondent contends that notwithstanding petitioner's allegation of substantive grounds for relief, hios petition must be dismissed in its entirety as untimely. 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 a one-year grace period subsequent to the effective date of April 24, 1996 to commence a habeas action. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
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 the 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). As the petition does not allege any facts which indicate that any of these other starting points should be used, the Court does not consider them.
The statute, however, creates a tolling exception, 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 requirements, such as the rules governing time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). If a petitioner files an out-of-time application and the state court dismisses it as time-barred, then it is not deemed to be a "properly-filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003).
In the case at bar, petitioner's conviction became final on August 23, 2000, 90 days after the Pennsylvania Supreme Court denied petitioner's request for discretionary review. United States Supreme Court Rule 13(1); See also 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). Petitioner therefore had until August 22, 2001 to file a federal petition for writ of habeas corpus.
After approximately 250 days of the limitation period had run, on April 24, 2001, petitioner filed a PCRA petition. The PCRA petition tolled the limitations period until March 3, 2004, when the Supreme Court denied allocatur from the Superior Court's affirmance of the denial of relief. He then had 115 days remaining in the limitation period, giving him until approximately June 26, 2004, to file a timely petition in federal court. Respondent now contends that since he failed to file the instant petition for writ of habeas corpus until July 14, 2004, a little over two weeks after his time for doing so had lapsed, it is now untimely. However, on March 15, 2004, prior to the expiration of his time for filing here, petitioner filed a third PCRA petition, which is now pending in state court.
While we recognize that respondent's untimeliness in answering the petition is not grounds for tolling petitioner's limitations period, we note that while respondent argues that petitioner has filed his petition a little over two weeks late, respondent's Answer to the petition was filed almost six weeks late, without even a request for an extension.
While a PCRA petition, which is filed out-of-time and dismissed by the state court as time-barred is not deemed to be a "properly-filed application" for tolling purposes, in this case the state court has not yet taken action. See Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003). We recognize that petitioner did not file this PCRA petition until over three and a half years after his conviction became final. However, if the state court addresses the petition on its merits, finding it to be properly filed, it would also act to toll the limitations period, making this petition timely. We therefore cannot dismiss the petition on timeliness grounds until further action is taken in state court.
III. FAILURE TO EXHAUST STATE COURT REMEDIES
Respondent also argues that three of petitioner's claims are procedurally defaulted as a result of his failure to exhaust state court remedies. Bound by the prevailing jurisprudence, the Court finds merit to the argument that three of petitioner's four claims are unexhausted, but recommends dismissal without prejudice due to the fact that a PCRA petition is currently pending in state court.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right, under state law, to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350, reh'g denied, 490 U.S. 1076 (1989). A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demands, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise, they risk depriving state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993).
Notably, exhaustion is not a jurisdictional requirement, but rather a rule of comity. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992), cert. dismissed, 506 U.S. 1089 (1993).
In the case at bar, petitioner has raised the three unexhausted claims in his PCRA petition, which is currently pending in state court. Although, it is likely that the state court will deem this petition untimely, we will not consider the claims to be procedurally defaulted since the matter remains pending in State Court. In light of this ongoing state court activity, this Court must, under 28 U.S.C. § 2254(b), dismiss the claims without prejudice as unexhausted. The doctrine of comity "`teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.'" Rose v. Lundy, 455 U.S. 509, 518 (1982) (quotations omitted). Certainly, if we were to act on the petition at this time, we would be stepping on the toes of the state court and usurping its right to consider claims before it without interference from the federal judiciary.
This Court's refusal to hear petitioner's claims on the merits at this time does not preclude him from returning to the Court once he has exhausted his claims through the state courts. Should the courts address the merits of the petition, but petitioner not be satisfied with the results, he may file, in a timely manner, a new Petition for Writ of Habeas Corpus. At the current time, however, we must act within the principles of comity and decline to entertain the petition on its merits.
If the Pennsylvania Court deems the pending PCRA petition to be properly filed, the time period during which the petition and any appeals are pending will toll the federal limitations period, allowing the petitioner to file a federal habeas petition immediately after the conclusion of the matter in the state courts. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). However, if the pending PCRA petition is deemed to be untimely by the State Court, given that it was filed more than one year from the date petitioner's conviction became final, the petition will not act to toll the limitations period. Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003). Even recognizing this fact, we decline place this matter in civil suspense or to make any provision to allow a subsequent habeas petition because if the state courts are unable to reach the merits of the petitioner's claims or if petitioner fails to file a timely appeal to the Pennsylvania Superior Court the three claims will remain unexhausted. Given the fact that petitioner would be unable to have these claims addressed by the state courts, they would be procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1 (1991). In addition, as discussed above, if the PCRA petition is not deemed to be properly filed, the time in which the PCRA petition is pending would not act to toll the limitations period, and the current petition would be clearly untimely. Therefore, this Court would be unable to review even petitioner's remaining exhausted claim, given the fact that he has not offered any explanation which would justify equitable tolling of the limitations period.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of October, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED WITHOUT PREJUDICE. There is no probable cause to issue a certificate of appealability.