Opinion
No. 2:04-CV-2212-EL.
August 10, 2004
REPORT AND RECOMMENDATION
Now pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated at the State Correctional Institution at Frackville, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied.
I. PROCEDURAL HISTORY
Following a jury trial before the Honorable John J. Poserina of the Philadelphia County Court of Common Pleas, petitioner was convicted, on July 2, 1996, of first-degree murder, robbery, possessing an instrument of crime and conspiracy. The conviction arose out of petitioner's carjacking and two robberies, during the latter of which he fatally shot his victim. Judge Poserina sentenced petitioner to a life sentence on the murder conviction and three concurrent terms of ten to twenty years' imprisonment to be served consecutively to the life sentence. Petitioner filed a timely appeal to the Pennsylvania Superior Court, who affirmed the judgment of sentence by way of memorandum opinion dated September 24, 1998. Commonwealth v. Dickens, 726 A.2d 1076 (Pa.Super. 1998). The Pennsylvania Supreme Court denied allowance of appeal on March 10, 1999.
Petitioner filed a pro se petition, on February 10, 2000, under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. Appointed counsel thereafter filed an amended PCRA petition and, on October 11, 2001, the PCRA court denied relief. Subsequently, on December 18, 2002, the Superior Court affirmed the dismissal, Commonwealth v. Dickens, 817 A.2d 1175 (Pa.Super. 2002), and the Pennsylvania Supreme Court denied allowance of appeal on May 28, 2003. Commonwealth v. Dickens, 825 A.2d 1259 (Pa. 2003).
On May 21, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus, setting forth the following claims:
1. Prosecutorial misconduct by improper expression of belief, improper expression as to credibility of witness and improper statement of fact;
2. Ineffective assistance of trial counsel for failure to object to the above prosecutorial misconduct;
3. Ineffective assistance of appellate counsel for failing to protect petitioner's right to direct appeal.
Respondent, in turn, argues that the entire petition is untimely and must be dismissed.
II. TIMELINESS
Notwithstanding petitioner's allegation of substantive grounds for relief, one procedural obstacle precludes federal review of those claims — timeliness. 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.), cert. denied, 124 S. Ct. 317 (2003).
In the case at bar, petitioner's conviction became final on June 10, 1999, ninety days after the Pennsylvania Supreme Court denied allowance of appeal. See 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). Subsequently, he had one year — until June 9, 2000 — to file his federal habeas petition. On February 10, 2000, approximately eight months into his one-year limitations period, petitioner filed a PCRA petition, tolling the statute of limitations. That petition remained pending until May 28, 2003, when the Pennsylvania Supreme Court denied review of this claim. Accordingly, the federal statute of limitations resumed running on May 28, 2003, leaving petitioner four more months — until September 27, 2003 — to seek habeas relief. He failed to do so, however, until May 21, 2004, almost eight months too late.
United States Supreme Court Rule 13(1) states that a petition for writ of certiorari to review the judgment of sentence is deemed timely when it is filed within 90 days after the entry of judgment of sentence.
See Stokes v. District Attorney of County of Philadelphia, 247 F.3d 539, 542 (3d Cir.), cert. denied, 534 U.S. 959, 122 S. Ct. 354 (2001) ("the time 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 one year statute of limitations under 28 U.S.C. § 2244(d)(2)").
One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling, which is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (quotation 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 (internal quotation omitted). The Third Circuit has set forth three circumstances permitting equitable tolling: (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) (internal quotations omitted); see also Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.), cert. denied, 539 U.S. 948, 123 S. Ct. 2617 (2003). "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.), cert. denied, 534 U.S. 944, 122 S. Ct. 323 (2001) (citing cases).
Petitioner has not put forth any reason, let alone one that rises to the level of extraordinary circumstances, to justify the delay in filing his petition. Consequently, we decline to exercise our equitable tolling powers and, instead, dismiss this matter with prejudice.
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 DENIED. There is no probable cause to issue a certificate of appealability.