Opinion
Civil Action No. 04-648.
April 21, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Regional Correctional Facility at Mercer, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed as untimely.
FACTS AND PROCEDURAL HISTORY
On March 24, 2000, Coles entered negotiated guilty pleas on the charges of rape and two counts of burglary. Sentencing was deferred until May 12, 2000, when Judge William R. Toal, Jr., of the Court of Common Pleas of Delaware County, sentenced Coles to a term of incarceration of 72 to 144 months on the rape charge, a consecutive term of incarceration of 18 to 36 months on one burglary charge, and a consecutive term of incarceration of 24 to 60 months on the other burglary charge. The aggregate sentence was 114 to 240 months.
Coles did not directly appeal his conviction and thus his conviction became final on June 11, 2000 when the thirty day period for filing a direct appeal expired. See Pa.R.App.P. 903(a) (requiring an appeal to be filed within 30 days of a lower court decision). On March 20, 2003, Coles filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"),
42 Pa.C.S.A. §§ 9541-9551, claiming that he was coerced into both his statements to police and his guilty pleas. On September 2, 2003, after appointed PCRA counsel filed a Finley letter, the PCRA court dismissed Coles' PCRA petition without a hearing on the grounds that the petition was not timely filed. Coles did not file an appeal.
Coles filed this petition for habeas corpus relief on February 17, 2004. In this petition, Coles asserts that: the police threatened him with bodily harm if he plead innocent to the rape charge; the police denied him requested legal counsel; counsel demanded he sign the plea bargain agreements when Coles was unable to pay additional legal expenses; and he did not have a fair trial.
DISCUSSION
Coles' petition for writ of habeas corpus was untimely filed pursuant to 28 U.S.C. § 2244. Pursuant to 28 U.S.C. § 2244(d)(1), a petition for writ of habeas corpus must be filed within one year 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.
Coles' was sentenced on May 12, 2000, and he had thirty days from that date to appeal his sentence. Since he did not appeal, the sentence became final on June 11, 2000, when the time expired for him to file an appeal. Therefore, he had to file his habeas petition on or before June 11, 2001. This petition was not filed until February 17, 2004, over two and a half years after the limitations period had expired.
In Coles' case, the limitations period is not subject to statutory or equitable tolling. Pursuant to 28 U.S.C. § 2244(d)(2), the time during which a "properly filed" petition for state post conviction relief is pending will toll the habeas limitations period. However, this provision is inapplicable to Coles' petition for two reasons. First, Coles' PCRA petition was not filed until March 20, 2003, nearly two years after the deadline had been reached on June 11, 2001. Clearly, a statute of limitations cannot be tolled after it has already expired. Second, tolling only occurs while a "properly filed application" is pending. Coles' PCRA petition was dismissed as untimely. As such, it is not considered a "properly filed application" as required for tolling. See Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003) (stating "the state court's holding that [petitioner's] PCRA petition was untimely and it follows that it was not `properly filed'"). Therefore, even if the deadline had not been reached on June 11, 2001, the five and half months from March 20, 2003 to September 2, 2003, while Coles' PCRA petition was pending, would not be tolled.
Section 2244's limitations period is also subject to equitable tolling in very narrow circumstances, "when the petitioner has `in some extraordinary way . . . been prevented from asserting his or her rights." Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In order to qualify for equitable tolling, the petitioner must establish that he exercised "reasonable diligence" in investigating and bringing the claims. Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 618-619 (3d Cir. 1998) (citing New Castle County v. Haliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997)). Here, Coles has not presented any argument that he was prevented from complying with the limitations period and has failed to establish that he exercised diligence in presenting his claims.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 21st day of April, 2004, it is hereby RESPECTFULLY RECOMMENDED that the Petitioner's Petition for Writ of Habeas Corpus be DISMISSED as untimely.
ORDER
AND NOW, this ____ day of ____, 2004, upon consideration of the Petition for Writ of Habeas Corpus and the Response to the Petition, and after careful review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus be DISMISSED as untimely.