Opinion
Civil Action No. 04-2063.
February 23, 2005
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Lawrence Alexander ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is currently incarcerated in the State Correctional Institution at Waynesburg, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, the Reply, and the exhibits attached to those pleadings.
On July 3, 1996, Petitioner, along with each of his three co-defendants, was convicted by a jury before the Honorable Albert J. Snite, Jr. in the Court of Common Pleas of Philadelphia County of two counts of aggravated assault, one count of possession of an instrument of crime ("PIC"), and one count of conspiracy. Petitioner was sentenced to seventeen and one-half to thirty-five years' imprisonment. Petitioner filed a direct appeal with the Pennsylvania Superior Court. On May 29, 1997, Petitioner wrote to Judge Snite expressing dissatisfaction with the representation provided by his appointed appellate counsel, Leonard Biddison, and asking that the court provide Petitioner with trial transcripts. On June 2, 1997, Judge Snite wrote back to Petitioner, advising that the trial transcripts had not yet been transcribed, and although Attorney Biddison could perhaps be more responsive to Petitioner, he was not going to remove him from the case because the delay in transcription was the Court's issue, not an issue with Attorney Biddison. On June 3, 1998, Petitioner sent correspondence to Attorney Biddison stating that he was not satisfied with counsel's performance, and admitting that Petitioner had filed a supplemental letter brief with the Superior Court which the District Attorney moved to strike. On August 7, 1998, the Superior Court affirmed Petitioner's convictions. See Commonwealth v. Davis, 726 A.2d 409 (Pa.Super. 1998) (table). Petitioner did not seek allocatur from the Supreme Court of Pennsylvania, therefore his judgment of sentence became final on September 9, 1998.
On May 1, 2000, Petitioner filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"). See 42 Pa. C.S.A. § 9541. Counsel was appointed to represent petitioner on June 23, 2000, and did not file an amended petition, but instead recognized the PCRA petition was time-barred and on August 6, 2002, filed a no merit letter and request to withdraw pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). Petitioner then filed a pro se motion to amend the first PCRA petition nunc pro tunc on August 28, 2002. On September 12, 2002, the PCRA court allowed counsel to withdraw, and dismissed the petition without a hearing. On September 22, 2003, the Superior Court affirmed the denial of PCRA relief because it found that the petition was untimely and no exceptions to the time-bar were applicable. See Resp., Ex. A; Commonwealth v. Davis, 835 A.2d 829 (Pa.Super. 2003) (table). On April 13, 2004, the Supreme Court of Pennsylvania denied Petitioner's allowance of appeal.Commonwealth v. Davis, 847 A.2d 1278 (Pa. 2004) (table).
On May 13, 2004, the instant pro se Petition was docketed by the Clerk of Courts. Petitioner makes the following claims in his Petition: (1) fundamental miscarriage of justice, based on actual innocence; (2) government interference; (3) ineffective assistance of appellate counsel; (4) ineffective assistance of trial counsel; and (5) the sentence for aggravated assault, criminal conspiracy, and possession of an instrument of crime should have merged for sentencing purposes. Respondents contend that the Petition is time-barred and should be denied and dismissed with prejudice.
II. DISCUSSION.
Petitioner's case must be decided pursuant to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996. Pub.L. 104-132, 110 Stat. 1214. Section 104(2) of the AEDPA amended 42 U.S.C. section 2254, the statute under which this Petition was filed, and requires that federal courts give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C. section 2244 to require that:
(d)(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;
©) 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). Petitioner's convictions became final on or about September 9, 1998, upon expiration of his allowable time for filing a timely petition for allowance of appeal with the Supreme Court of Pennsylvania. Thus, under the AEDPA, Petitioner had until September 9, 1999, to file a timely Petition in this Court. Because the instant Petition was not signed until May 13, 2004, over four years after the statute of limitations expired, it is time-barred.
Petitioner argues that the AEDPA statute of limitations should be equitably tolled because his direct appeal counsel did not file an allowance of appeal with the Pennsylvania Supreme Court.Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 540 U.S. 826 (2003) (citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998) (citation omitted)). The United States Court of Appeals for the Third Circuit has held that "equitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.'" Miller, 145 F.3d at 618 (quotingShendock v. Dir., Ofc. of Workers' Comp. Programs, 893 F.2d 1458, 1462 (3d Cir.) (en banc), cert. denied, 498 U.S. 826 (1990)). The Petitioner "must show that he . . . `exercised reasonable diligence in investigating and bringing [his] claims.' Mere excusable neglect is not sufficient." Id. (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) and citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). The Third Circuit advises that equitable tolling is permitted in the following three circumstances: (1) if the [Respondent] has actively misled the [Petitioner]; (2) if the [Petitioner] has in some extraordinary way been prevented from asserting his rights, or (3) if the [Petitioner] has timely asserted his rights mistakenly in the wrong forum. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001) (citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted)).
Petitioner contends that if Attorney Biddison had met the following three requirements, which Petitioner contends it was counsel's legal duty to provide, "the entire fiasco of the Time-Bar" could have been avoided: (1) "inform the petitioner that his time to file for allocatur with the Pennsylvania Supreme Court had expired;" (2) "inform the petitioner that his next step in the Pursuit of Justice was to file a P.C.R.A. Petition, before one year of the Superior Courts Decision;" and (3) "Send the petitioner all legal documents relevant to his case, and inform the petitioner he was no longer representing him as counsel." Reply, p. 6. According to Petitioner, Attorney Biddison:
failed to file a allowance of appeal to the Supreme Court of Pennsylvania, despite petitioner's requests for appellate counsel to file an allowance of appeal on his behalf. Instead appellate counsel (Leonard Biddison) abandoned the petitioner during the direct appeal stages, without giving the court or the petitioner notice of his withdrawal. Attorney, Leonard Biddison, failed to respond to any of the petitioner's letters, or the inquiry made by petitioner's family and friends, concerning his legal status, nor was the telephone calls returned.
Pet.'s Mem. Law, p. 2. Contrary to Petitioner's arguments, Respondents contend that equitable tolling is inappropriate in this case because Petitioner did not act with reasonable diligence.
On August 10, 1998, Attorney Biddison mailed Petitioner a copy of the August 7, 1998 Superior Court opinion affirming the judgment of sentence and a letter stating, "[a]fter your review of the enclosed [opinion], please contact me by telephone. As I have stated before, you are free to call my office collect."See Resp., Ex. C, Ex. E; 8/10/98 Letter from Pet. to Biddison. Petitioner alleges that he sent Attorney Biddison a letter dated November 28, 1998, requesting that counsel file an allocatur petition on his behalf. See Resp., Ex. C, Ex. F; 11/28/98 Letter from Pet. to Biddison. That letter was apparently never received by Attorney Biddison. Petitioner apparently also sent correspondence dated August 15, 1999 to Attorney Biddison. Although that correspondence is not contained in the record, it is referenced in correspondence sent by Attorney Biddison to Petitioner on September 15, 1999, in which he states:
I have reviewed your letter dated August 15, 1999. In that letter, you reference a letter to me dated November 28, 1998. Please be advised that I have not received a letter from you dated November 28, 1998. Additionally, I have not received any telephone calls from you or any family member wherein an appeal to the Supreme Court is requested.
In your letter dated August 15, 1999, you state that you have employed your family to call my office to discuss progress in the case and that on every attempt to contact me, they have met with a dead end. Please be advised that since the date of my last correspondence to you, the same being August 10, 1998, you have not contacted my office, and I have not received any phone calls from anyone identifying themselves as a friend or family member of you. As I have stated to you previously, you are free to contact my office by collect calling. Additionally, your family members are free to contact my office by phone, and if they request, they can make an appointment to come into my office and discuss any matters that you approve me to discuss with them.
Upon receipt of this correspondence, I respectfully request that you contact me to discuss the issues raised in your letter. You said the sole purpose of your letter dated August 15, 1999, was to obtain information as to whether I complied with your previous request to appeal to the Supreme Court. As I have never received a request from you or others on your behalf to appeal to the Supreme Court, be advised that I have not filed such an appeal.See Resp., Ex. C, Ex. B; 9/15/99 Letter from Biddison to Pet. (emphasis added). One month later, Petitioner sent correspondence to Attorney Biddison dated October 15, 1999, stating:
I received your letter dated 9-15-99, I have not contacted your office by phone because the institution I am in it is extremely difficult to schedule morning phone calls. I have once again employed my mother to attempt to contact you on my behalf. If you would schedule a time and date to call your office that may assist me in speaking to you directly. My primary question to you is, has my time elapsed for an appeal of your brief to the Supreme Court and if so what, if anything, do you plan to do about it? What is your strategy and future plans where my case is concerned?See Resp., Ex. C, Ex. G; 10/15/99 Letter from Pet. to Biddison (emphasis added). There is no further evidence in the file indicating contact between Petitioner and Attorney Biddison.
By October 15, 1999, Petitioner had learned that counsel did not file an allocatur petition on his behalf. However, Petitioner did not file his PCRA petition until May 1, 2000, nearly seven months later. Petitioner was in the Restricted Housing Unit ("R.H.U.") of the prison "without access to the law library, legal advisers, and/or any of his personal legal materials" from August 31, 1998 through April 9, 1999, and from May 3, 1999 through November 3, 1999. See Pet.'s Mem. Law at 2. Assuming that Petitioner's allegations of lack of access to the law library or legal materials is true, Petitioner filed his pro se PCRA petition six months after he was released from the R.H.U. There is no evidence of any contact between Petitioner and Attorney Biddison after October 15, 1999. Despite this lack of contact, Petitioner argues that he was unaware that he could file a PCRA petition on his own behalf until he was advised by a paralegal at S.C.I. Greene that he could do so, and he did file his pro se PCRA petition on May 1, 2000.
Respondents counter Petitioner's lack of access to legal materials argument with the statement that "Respondents contacted authorities at SCI Houtzdale and SCI Greene and were informed that, in 1998 and 1999, inmates housed in the Restricted Housing Unit did, in fact, have access to a law library." Resp., p. 5. Respondents also note that, although Petitioner claims that his counsel failed to respond to any of Petitioner's letters, the record shows that counsel responded to an August 15, 1999 letter from Petitioner on September 15, 1999. In that September 15, 1999 letter, counsel explained to Petitioner that he never received a November 28, 1998 letter from Petitioner asking him to file a Petition for Allowance of Appeal.
Petitioner attaches to his Amendment/Supplemental Memorandum of Law an affidavit executed by his mother, Nadine Davis, stating that on several occasions from 1996 through 2000 she made telephone calls to Attorney Biddison. This is in direct conflict with Attorney Biddison's statement in his September 15, 1999 letter that he had not been contacted by any of Petitioner's family members. Petitioner himself wrote in his October 15, 1999 letter that "I have not contacted you because the institution I am in it is extremely difficult to schedule morning phone calls." See Pet.'s 10/15/99 letter. Respondents note that Attorney Biddison stated in two letters, "[a]fter your review of the enclosed, please contact me by telephone. As I have stated before, you are free to call my office collect." See 8/7/98 letter from Biddison to Pet. Attorney Biddison also stated "[a]s I have stated to you previously, you are free to contact my office by phone, and if they [Petitioner's family members] request, they can make an appointment to come into my office and discuss any matters that you approve me to discuss with them."See 9/15/99 letter from Biddison to Pet. Petitioner contends in his Reply Brief that "[a]s for petitioners failure to contact appellate counsel by phone it was not because he choose not to, but because he could not, the petitioner was housed in the R.H.U. of S.C.I. Houtzdale from August 31, 1998 until he was transferred to S.C.I. Greene and placed in the R.H.U. at S.C.I. Greene. This R.H.U. time ran from 8/31/98 through 4/9/99, to 5/3/99 through 6/23/99, and from 6/23/99 through 11/3/99." See Pet.'s Reply, p. 3. There is no evidence that Petitioner attempted to contact Attorney Biddison following his release from the R.H.U. on November 3, 1999.
The affidavit is signed, but not notarized.
Petitioner contends that he was, in effect, given no legal advice from institutional paralegals, who he claims are available to inmates in the general population but not available to inmates in the R.H.U. Petitioner also contends that he had no access to trial transcripts, which he claims were promised by appellate counsel, but never sent.
Petitioner does acknowledge that he obtained copies of his trial transcripts from a co-defendant.
In determining whether extraordinary circumstances exist to warrant the application of equitable tolling, this Court must examine Petitioner's due diligence in pursuing the matter under the specific circumstances he faced. Traub v. Folio, No. 04-386, 2004 WL 2252115, at *2 (E.D. Pa. Oct. 5, 2004) (citingSchleuter v. Varner, 384 F.3d 69 (3d Cir. 2004) (affirming dismissal of habeas petition as time barred and not entitled to equitable tolling because lengthy periods of time had elapsed following his conviction before he sought relief). It is Petitioner's burden to show that he acted with reasonable diligence and the extraordinary circumstances caused his petition to be untimely. Id. Petitioner, in his Reply to the Response, supports his reasonable diligence argument by stating that:
It is the assertion of the District Attorney that the petitioner was not reasonably diligent in bringing his claims before the court the petitioner disagrees with that assertion. The court must understand that at the time of the petitioner's arrest, conviction and direct appeal, the petitioner had little or no knowledge of appellate procedures, the court has long acknowledged that a lay person may not possess the ability to successfully navigate the legal system, this is the very reason that counsel is appointed by the court, to protect the rights of the appellant, when appellate counsel fails to carry out his duty to his client, for the court to allow such a miscarriage to go uncorrected, undermines the entire premise of the Justice System. The petitioner believed that an attorney had a responsibility to protect the rights of his client and advise the client of his next step in appeal. The district attorney, states in their brief that the petitioner's letter requesting allocatur was mailed two months after the deadline for filing a timely allocatur petition had expired. This claim may have been acceptable if appellate counsel Leonard Biddison had been unaware of petitioner's desire to exhaust all appellate remedies. This request was made clear to appellate counsel in virtually every letter petitioner wrote to counsel, the petitioner in effect maintained his innocence to appellate counsel in several correspondence's, in which he requested that counsel challenge The Sufficiency of the Evidence, because the evidence presented at trial proves his innocence. This request was also made in the one telephone conversation the petitioner had with appellate counsel Leonard Biddison. (This phone call was made at S.C.I. Houtzdale, on a direct line, with the aid of an institutional counselor.) This in no way excuses the fact that appellate counsel did not inform the petitioner that his duty to him was complete and inform him of his next stage of appeal which would have been a P.C.R.A. Petition. The petitioner was never informed by counsel that counsel was withdrawing representation, the petitioner was under the impression that appellate counsel was still the counsel of record, and had a duty to protect his rights and advise him of his next logical step. The basis of the petitioner thinking along those lines was because appellate counsel was specifically asked by the petitioner in a letter dated 10/15/99. "What is your strategy and future plans where my case is concerned?" (This letter was not included as an Exhibit in the Habeas Memorandum of Law but it was Exhibit-G in his brief to the Superior Court, March 13, 2003.) Furthermore, the petitioner was told by counsel that he would hand over the trial transcripts and any relevant legal documents on the case when his Superior Court brief was complete. (See, Exhibit-D, Feb. 13th letter from Leonard Biddison. As for the petitioners failure to contact appellate counsel by phone it was not because he choose not to, but because he could not, the petitioner was housed in the R.H.U. of S.C.I. Houtzdale from August 31, 1998 until he was transferred to S.C.I. Greene and placed in the R.H.U. at S.C.I. Greene. This R.H.U. time ran from 8/31/98 through 4/9/99, to 5/3/99 through 6/23/99 and from 6/23/99 through 11/3/99. These dates were verified through S.C.I. Greene's counselor Ms. Lambrite.
The petitioner in affect was given no legal advise by counsel and was incapable of receiving legal advise from institutional paralegal's that are available in population but are not available to inmates in the R.H.U. As a result the petitioner had no legal assistance at all. The petitioner did not have any legal advise or trial transcripts, as they were promised by appellate counsel but never sent.
The petitioner until being informed otherwise by a paralegal at S.C.I. Greene (in population) was unaware that he could file a P.C.R.A. Petition on his own behalf, appellate counsel had ceased to respond to his letters or accept or return his family member's phone calls, yet counsel still had not given petitioner a copy of the trial transcripts or given the petitioner notice of his withdrawal of representation.See Pet.'s Reply, pp. 2-4. In examining the arguments raised and documents provided in support of the instant Petition, Petitioner himself contacted the trial court in relation to his direct appeal and his dissatisfaction with his trial counsel. However, Petitioner did not make any personal contact with any state court beyond the trial court. Further, Petitioner did not contact Attorney Biddison as counsel asked repeatedly, but rather wrote letters to counsel, ignoring the preferred method of telephone contact, and attempting to shift the duty of making contact from himself to counsel. Petitioner was released from the R.H.U. and waited an additional six months to file his PCRA petition. Assuming that Petitioner's correspondence was actually sent to Attorney Biddison, Petitioner took absolutely no action to protect his rights. Despite this dilatory behavior, Petitioner now comes before this Court seeking relief on the basis that his attorney was ineffective.
Under the circumstances of this case, this Court finds that Petitioner did not act in a reasonably diligent fashion because a reasonably diligent petitioner would have acted promptly to preserve his rights not only in the state court, but also in this Court. Indeed, Petitioner fails to allege any steps that he took to timely file the instant federal habeas petition. Thus, Petitioner's equitable tolling argument fails. Holmes v. Vaughn, No. 01-2565, 2003 WL 23112383, at *6-*7 (E.D. Pa. Nov. 25, 2003). The Petition is time-barred, and must be denied with prejudice and dismissed without an evidentiary hearing.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this __ day of February, 2005, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.