Opinion
Civil Action No. 03-6343.
April 29, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus. Petitioner is presently incarcerated at the State Correctional Institution at Frackville, Pennsylvania. For the reasons stated below, this court recommends that the petition be dismissed because it is barred by the one-year statute of limitations for the filing of a habeas corpus petition. I. BACKGROUND
Petitioner filed his petition requesting relief pursuant to 28 U.S.C. § 1651, 2241, and 2254. (Petitioner's Mem. Supp. Pet. at 1, 17.) The Commonwealth contends that petitioner filed his petition under section 2241 to bypass the filing restrictions contained in the Antiterrorism and Effective Death Penalty Act of 1996. Following the directives of the Third Circuit Court of Appeals in Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001), the court will consider the petition to be one filed pursuant to section 2254. In the instant case, as in Coady, both sections 2241 and 2254 authorize petitioner's challenge to the legality of his sentence. However, as the Third Circuit explained, "when two statutes cover the same situation, the more specific statute takes precedence over the more general one." Id. at 484 (citations omitted). Section 2254 is more "specific" than section 2241 because it contains a restriction on the availability of second and successive petitions through section 2254(b). Id. Hence, section 2254 is the controlling statue for a person in custody pursuant to a state judgment who alleges that he or she is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Coady, 251 F.3d at 484-86.
On August 18, 1982, a jury sitting before the Honorable Murray C. Goldman of the Court of Common Pleas for Philadelphia County, convicted petitioner of criminal conspiracy, robbery, and possession of an instrument of crime. (C.P. Nos. 2540-2545). Petitioner was sentenced to an aggregate term of seventeen and one-half to thirty-five years imprisonment.
The jury was unable to reach a verdict on the charge of criminal homicide, and the judge declared a mistrial on that charge. On July 19, 1983, petitioner was retried on the homicide charge, and he was acquitted on July 22, 1983.
On January 30, 1985, the Pennsylvania Superior Court denied petitioner's direct appeal. Commonwealth v. Creighton, 490 A.2d 10 (Pa.Super. 1985) (Table). (Response Ex. B.) Petitioner did not seek review by the Pennsylvania Supreme Court. On July 24, 1986, petitioner filed a petition under the Post Conviction Hearing Act ("PCHA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. (repealed). The PCHA court dismissed the petition. On August 6, 1990, the Pennsylvania Superior Court affirmed the dismissal of petitioner's PCHA petition. Commonwealth v. Creighton, 581 A.2d 970 (Pa.Super. 1990) (Table). (Response Ex. C.) Petitioner did not seek review by the Pennsylvania Supreme Court.
On July 26, 2000, petitioner filed a second petition for collateral relief, this time under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. On December 27, 2000, the petition was dismissed as untimely. Petitioner did not seek review by the Pennsylvania Supreme Court.
On February 7, 2001, petitioner filed a third petition for collateral relief. The court construed the petition as a PCRA petition and dismissed it as untimely. On May 9, 2002, the Pennsylvania Superior Court affirmed the dismissal. Commonwealth v. Creighton, 804 A.2d 52 (Pa.Super. 2002) (Table). (Response Ex. D.) On November 22, 2002, the Pennsylvania Supreme Court denied petitioner's request for review. Commonwealth v. Creighton, 813 A.2d 837 (Pa. 2002) (Table).
On November 20, 2003, petitioner filed the present habeas corpus petition and a memorandum of law. Petitioner claims that he is serving an illegal sentence in violation of his rights under the 5th, 8th and 14th Amendments and the due process clause of the United States Constitution. (Petitioner's Mem. Supp. Pet. at 4.) Specifically, petitioner contends that the state court erred under then applicable state law, by imposing consecutive sentences for criminal conspiracy (five to ten years) and possession of an instrument of crime (two and one-half to five years). Id. at 14-16 (citing 18 Pa. Cons. Stat. Ann. § 906 (1983)). Petitioner claims that the consecutive sentence for possession of an instrument of crime, which he is scheduled to begin serving on December 14, 2007, is in violation of the United States Constitution. Id. Petitioner seeks correction of his sentence by this court or by remand to the trial court for resentencing. Id. at 4.
On April 20, 2004, the District Attorney for Philadelphia County filed a response to the petition in which she argued that the petition should be dismissed as untimely because it was not filed within the one-year statute of limitations as required by 28 U.S.C. § 2254.
II. DISCUSSION
Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year limitations period for the filing of a habeas corpus petition and in relevant part provides:
(1) 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;
(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.
(2) The time during which a properly filed application for State postconviction 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). See generally Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944 (2001); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998).
The effective date of the statute was April 24, 1996. AEDPA's one-year limitations period allows prisoners a one year grace period following the effective date of the statute to file their habeas corpus petitions if their convictions became final prior to that effective date. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Petitioner's conviction became final on March 1, 1985, thirty days after the Pennsylvania Superior Court affirmed the judgment of the Court of Common Pleas. Pa. R. App. P. 1113.See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (stating that "a judgment becomes final after the time for seeking discretionary review expires"). Since this date is prior to the effective date of the AEDPA, the one-year limitations period began to run on April 24, 1996. Petitioner thus had until April 23, 1997 to file his habeas corpus petition.
28 U.S.C. § 2244(d)(1)(A) provides that the statute of limitations runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." None of the other possible "start dates" listed in § 2244(d)(1)(B)(C) and (D) apply here.
The one-year statute of limitations is tolled during the time petitioner had pending in the state courts a properly filed PCRA petition. See 28 U.S.C. § 2244(d)(2) (providing that the time during which a "properly filed" petition for collateral relief is pending is not counted toward the one-year statute of limitations). Petitioner filed three petitions for collateral relief in state court. Petitioner filed his first petition for collateral relief on July 24, 1986 and the Pennsylvania Superior Court affirmed the dismissal of the petition on August 6, 1990. This activity took place prior to the effective date of the AEDPA and, therefore, does not toll the limitations period.
Petitioner's second and third petitions for collateral relief, filed on July 26, 2000 and February 7, 2001, respectively, were filed several years after the expiration of the limitations period. Hence, they do not toll the already expired statute of limitations.
Moreover, petitioner's second and third petitions for collateral relief were dismissed as untimely. (Petitioner's Mem. Supp. Pet. Ex. A; Response Ex. C.) The Third Circuit Court of Appeals has held that an untimely PCRA petition is not "properly filed" and, therefore, will not toll the limitations period.Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir.), cert. denied, 124 S.Ct. 317 (2003).
In the instant case, the AEDPA limitations period began to run on April 24, 1996 and expired on April 23, 1997. Petitioner's habeas petition was filed on November 20, 2003, over six and one-half years after the deadline. As a result, the petition is untimely and must be dismissed.
Petitioner has not alleged any facts to suggest that the statute of limitations should be equitably tolled. The Third Circuit has held that the federal habeas statute of limitations is subject to equitable tolling in only extraordinary circumstances. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In Miller, the court stated the following:
[E]quitable tolling is proper only when the principles of equity would make the rigid application of a limitation period unfair. Generally, this will occur when the petitioner has in some extraordinary way . . . been prevented from asserting his or her rights. 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 (interior quotations and citations omitted). Equitable tolling may only be found when: (1) the state has actively misled the petitioner; (2) the petitioner has in some extraordinary way been prevented from asserting his rights; or (3) the petitioner has timely asserted his rights but in a wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
Petitioner has not alleged that the Commonwealth of Pennsylvania misled him regarding the required date to file his federal habeas corpus petition. Moreover, petitioner has not alleged that he has "in some extraordinary way" been prevented from asserting his rights. Finally, this is not a case where petitioner timely asserted his rights in the wrong forum. Thus, the one-year statute of limitations cannot be equitably tolled.
For all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this day of April, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DISMISSED as time-barred by the statute of limitations, and that no certificate of appealability be granted.