Opinion
Civil Action No. 03-5324.
August 27, 2004
REPORT AND RECOMMENDATION
This is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Robert Cook ("Cook"), an individual currently incarcerated in the Greene State Correctional Institution in Waynesburg, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed.
FACTS AND PROCEDURAL HISTORY:
On March 4, 1988, a jury sitting before the Honorable Eugene H. Clarke, Jr., Court of Common Pleas of Philadelphia County, convicted Cook of first-degree murder and possession of an instrument of crime. On July 23, 1991, after denying post-verdict motions, Judge Clarke sentenced Cook to life imprisonment on the murder conviction and a concurrent term of one (1) to five (5) years on the weapons count.
Cook filed a direct appeal in the Pennsylvania Superior Court, which affirmed the judgment of sentence on July 21, 1992.Commonwealth v. Cook, 616 A.2d 713 (Pa.Super. 1992) (table). The Pennsylvania Supreme Court denied Cook's petition for allowance of appeal on March 31, 1993.
On April 24, 1995, Cook filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. Counsel appointed to represent Cook in his PCRA matter, Sondra Rodriques, Esquire, subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), certifying that she had reviewed the claims made by Cook in his petition and concluded that there were no meritorious issues to advance before the PCRA court. On March 14, 1996, the PCRA court permitted counsel to withdraw and dismissed Cook's petition as meritless. Cook did not file a timely notice of appeal.
Cook asserts that he never received the PCRA court's notice of intent to dismiss his petition. See Pet.'r Mem. of Law, at 3.
On January 15, 1997, Cook filed a second PCRA petition. In April of 1997, while Cook's second PCRA petition was pending, the Philadelphia District Attorney's Office ("DA's Office") released a videotape that revealed the improper jury selection tactics of Cook's former prosecutor, Jack McMahon, Esquire. In light of this development, on May 12, 1997, the PCRA court re-appointed Sondra Rodrigues to represent Cook. On March 10, 1999, Attorney Rodrigues filed an amended second PCRA petition alleging, inter alia, that Mr. McMahon had exercised preemptory challenges in violation of Cook's constitutional rights to equal protection and due process pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).
On May 26, 2000, the PCRA court granted the Commonwealth's motion to dismiss each of the claims raised in Cook's petition with the exception of the Batson claim. Then, in a notice dated December 12, 2000, the PCRA court informed Cook of its intent to dismiss the entire petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907 (formerly Rule 1507). The PCRA court ultimately dismissed Cook's petition as untimely on January 11, 2001.
Pursuant to the amended PCRA, effective January 16, 1996, collateral actions must be filed within one (1) year of the date the conviction at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b)(1).
Cook filed an appeal in the Superior Court. On January 28, 2003, the Superior Court affirmed the denial of post-conviction relief after finding that Cook's petition was untimely. Commonwealth v. Cook, 803 A.2d 789 (Pa.Super. 2002) (table); No. 654 EDA 2001 (Pa.Super. April 22, 2002) (unpublished memorandum). The Pennsylvania Supreme Court denied Cook's petition for allowance of appeal on September 24, 2002.Commonwealth v. Cook, 808 A.2d 569 (Pa. 2002).
The one (1) year time limitation provides an exception for alleged "new evidence" as long as the petition invoking the exception is "filed within 60 days of the date the claim could have been presented." 42 Pa. Cons. Stat. Ann. § 9545(b)(2). In the instant case, the Superior Court found that Cook's petition was untimely because he had failed to establish that he had presented his claims of "after-discovered evidence" within 60 days of the date on which he learned of the existence of such evidence. Commonwealth v. Cook, No. 654 EDA 2001, at 6-7.
Cook filed the instant petition for writ of habeas corpus on September 22, 2003, claiming that Mr. McMahon exercised preemptory challenges in violation of Cook's constitutional rights to equal protection and due process in violation ofBatson v. Kentucky, 476 U.S. 79 (1986) and Swain v. Alabama, 380 U.S. 202 (1968). Respondents have filed an answer asserting that Cook's habeas petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). DISCUSSION :
I. Statute of Limitations
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). Cook's conviction became final when his direct appeals ended in 1993. Because his conviction became final prior to April 24, 1996, the effective date of the AEDPA, Cook would normally have had until April 23, 1997, to timely file his § 2254 petition. Duncan v. Walker, 533 U.S. 167 (2001) ("In the context of AEDPA's 1-year limitations period, which by its terms runs from `the date on which the judgment became final,' see § 2244(d)(1)(A), the Courts of Appeals have uniformly created a 1-year grace period, running from the date of AEDPA's enactment, for prisoners whose state convictions became final prior to AEDPA."); Burns v. Morton, 134 F.3d 109, 111-12 (3d Cir. 1998).
A. Effect of Second PCRA Petition
When the one-(1-) year "grace period" began on April 24, 1996, Cook did not have any applications for post-conviction relief pending in the state courts. However, on January 15, 1997 — 266 days into his one (1) year grace period — Cook filed his second PCRA petition. Because the state courts dismissed this petition as untimely, it is not considered a "properly filed application" for post-conviction relief which would toll the federal statute of limitations. See 28 U.S.C. § 2254(d)(2) (the time during which a "properly filed application" for state post-conviction review is pending shall not be counted toward the one (1) year period of limitation); Artuz v. Bennett, 531 U.S. 4 (2000) ("an application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings" such as "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee"); Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944 (2001); see also Carey v. Saffold, 536 U.S. 214 (2002) (an application for collateral review in state court must satisfy the state's timeliness requirements to be deemed "properly filed"); see also Merritt v. Blaine, 326 F.3d 157, 165-166 (3d Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 317, 157 L.Ed.2d 219 (2003) (to determine whether state petition for post-conviction relief is "properly filed," as required to toll limitations period for filing federal habeas petition, a federal court must "`look to state law governing when a petition for collateral relief is properly filed'" and "`defer to a state's highest court when it rules on an issue'") (quotingFahy, 240 F.3d at 243-44). As such, the period of time that Cook's second, untimely PCRA petition was pending in the state courts (from January 15, 1997, until September 24, 2002) did not toll the one (1) year limitation period.
Indeed, in reviewing the United States Supreme Court decision in Carey v. Saffold, supra, the Third Circuit noted that "we read the [Carey] decision as holding that if a state's Supreme Court has determined that a petition was not timely, then we must hold that it was not `properly filed.'" Merritt, 326 F.3d at 168 (emphasis in original).
Cook argues that the state courts erroneously characterized his petition as untimely filed. See Pet'r Mem. of Law, at 5-11. Even if, however, I were to toll the federal statute of limitations for Cook's second PCRA petition, the instant petition would still be untimely. When the Pennsylvania Supreme Court denied post-conviction relief for Cook's second PCRA petition on September 24, 2002, ninety-nine (99) days remained of the federal statute of limitations. See Johnson v. Hendricks, 314 F.3d 159, 162 (3d Cir.), cert. denied, 538 U.S. 1022 (2003) (holding that 28 U.S.C. § 2244(d)(2) does not reset date from which the applicable one-(1-) year limitations period begins to run); see also Stokes v. District Att'y of the County of Phila., 247 F.3d 539, 543 (3d Cir. 2001) (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). As such, in order to file in a timely manner, Cook was required to have filed the instant petition by January 1, 2003. Because Cook filed on September 22, 2003, his habeas petition would be deemed untimely by more than nine (9) months.
Cook submitted the instant motion for filing on September 22, 2003, over six (6) years after the limitation period had expired on April 24, 1997. He 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, Cook would be barred from presenting his claims under § 2254, unless the instant petition is subject to equitable tolling.
Cook does not specifically address the federal statute of limitations or present any arguments in relation thereto. To the extent, however, that Cook would argue that "newlydiscovered evidence" predicated upon the existence of the DA's Office videotape made by McMahon could not have been previously discovered and impeded his ability to file his habeas petition in a timely manner, see 28 U.S.C. § 2244(d)(1)(D), I find that such a claim must be dismissed. The date on which the factual predicate of the instant claim "could have been discovered through the exercise of due diligence" was when the DA's Office videotape was provided to Cook's counsel in April 1997. See 28 U.S.C. § 2244(d)(1)(D) (requiring that claims based on newly discovered evidence be brought within one (1) year of the date when the evidence could have been found through due diligence). Inasmuch as Cook was on notice of the basis for his claim from April 1997, I find that he would have had to have filed the instant petition by April 1998 to have done so in a timely manner. Cook did not file the instant petition until September 2003 — over five (5) years too late.
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 Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1988). Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Id. (citation omitted). "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 (citations omitted). The Third Circuit has set forth three (3) circumstances in which equitable tolling is justified: (1) if 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, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted). "In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
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. Cook presents us with no evidence that he either diligently pursued his claims or was prevented in some extraordinary way from doing so. Because Cook 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. Consequently, Cook's petition must be dismissed as untimely.
As previously discussed, Cook contends that the state courts improperly characterized his second PCRA petition as untimely, thereby denying him the opportunity to present hisBatson claim to the state courts. In support thereof, Cook notes that the state courts determined that his second PCRA petition was untimely because his amendment to the petition was not filed within sixty (60) days of the McMahon tape being disclosed to counsel. See Pet'r Mem. of Law, at 5. Cook points out, however, that his pro se PCRA petition was pending when the McMahon tape was disclosed, and that appointed counsel was subsequently granted unopposed continuances in order to file an amended version of that pro se petition. See Pet'r Mem. of Law, at 7-9. Cook argues that, in contravention of state law, the state courts erroneously failed to relate his amended petition back to the filing date of his original pro se petition. Although this argument appears to have some merit, such an issue is irrelevant to the question of whether he diligently pursued his federal remedy because it fails to establish that Cook was prevented in some extraordinary way from asserting his rights. Cook waited to file his federal habeas petition more than eleven (11) months after the Pennsylvania Supreme Court determined that his second PCRA petition was time-barred. Because Cook did not diligently file the instant habeas petition once he discovered that his second PCRA petition was untimely, I find that equitable tolling is not appropriate. See Hentosh v. Herman M. Finch University of Health Sciences, 167 F.3d 1170, 1175 (7th Cir. 1999) (even in situations in which equitable tolling initially applies, a party must file suit within a reasonable time after realizing that such a suit has become necessary); see generally Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003) (noting that one (1) month would be "time enough" for a petitioner, "acting with reasonable diligence, to prepare and file at least a basic pro se habeas petition"); Walker v. Frank, 56 Fed.Appx. 577, 582 n. 5, 2003 WL 115951, at *4 n. 5 (3d Cir. Jan. 14, 2003) (11 months deemed an "unreasonably long time" to file a habeas petition after being put on notice that second PCRA petition was time-barred).
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus 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, 2004, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections filed thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.