Opinion
Civil Action No. 04-3153.
December 29, 2004
REPORT AND RECOMMENDATION
Presently before this court is a Petition for Writ of Habeas Corpus filed by Omar Edwards ("Petitioner"), pro se, pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner serving a sentence at the State Correctional Institution at Greene, Waynesburg, Pennsylvania. Petitioner seeks habeas relief asserting claims of prosecutorial misconduct and ineffective assistance of counsel. On August 16, 2004, the Honorable Paul S. Diamond referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons that follow, it is recommended that this petition be denied and dismissed, without an evidentiary hearing.
I. FACTUAL AND PROCEDURAL HISTORY
The background and procedural history were gleaned from the Petition for Writ of Habeas Corpus, the Comm onwealth's Response, inclusive of all exhibits thereto, and the State Court record.
The facts leading to Petitioner's conviction as summarized by the Philadelphia County Court of Common Pleas, follow:
On October 28, 1994[,] at approximately 11:00 p.m., Lamar Jackson ("Jackson") was driving an automobile at 19th and Wingohocken Ave., Philadelphia. [Petitioner] and JuJuan Pinkney ("Pinkney"), and another man were in the car with Jackson. Approximately one month prior to this incident, [Petitioner] and Jackson had been shot during an attempted carjacking. Suddenly, someone in the car said that he had observed a man on the street who looked like one of the perpetrators of the car-jacking. That man was with two other individuals. Jackson slowed his car next to the three men, and [Petitioner] then stated that one of the men definitely was one of the perpetrators of the attempted car-jacking. [Petitioner] then took his gun from its holster and began shooting at the three men, who included Demetrius Hawkins ("decedent") and David Dickerson. The decedent died as a result of the shooting.Commonwealth v. Edwards, No. 9502-0937-2/2, Mem. Op. (Ct. Com. Pl. Phila. County, September 11, 2000).
At Petitioner's first trial he was convicted of possession of an instrument of crime, reckless endangerment, and conspiracy, but the jury was hung on the murder count. Petitioner was re-tried, four months later, and convicted of first degree murder. On January 27, 1997, Petitioner was sentenced to a term of life imprisonment. See Commonwealth v. Edwards, No. 9802-0927-2/2, Mem. Op. (Ct. Com. Pl. Phila. County, Jan. 27, 1997). Petitioner's direct appeal was dismissed on January 8, 1998, for failure to file a brief; he did not seek allowance of appeal in the Supreme Court of Pennsylvania.
On October 7, 1998, Petitioner did file a pro se petition for collateral relief under the Post-Conviction Relief Act ("PCRA"). Counsel was appointed and timely filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) ( en banc). On July 13, 1999, the PCRA Court dismissed the petition and permitted counsel to withdraw. In a memorandum opinion dated September 11, 2000, the Superior Court of Pennsylvania affirmed the dismissal. See Commonwealth v. Edwards, 766 A.2d 885 (Pa.Super. 2000). The Supreme Court of Pennsylvania denied allocatur on February 6, 2001. See Commonwealth v. Edwards, 771 A.2d 1279 (Pa. 2001).
Petitioner filed a second PCRA petition, on January 30, 2002. Thereafter, on May 30, 2002, the PCRA Court dismissed this petition as untimely. In a judgment order dated March 20, 2003, the Superior Court of Pennsylvania affirmed the dismissal. Commonwealth v. Edwards, 823 A.2d 1024 (Pa.Super. 2003). Petitioner did not further appeal his conviction.
Next, on July 2, 2004, Petitioner filed the within petition seeking a federal writ of habeas corpus alleging that: 1) trial counsel was ineffective for failing to request a jury instruction limiting the purpose for which the jury could consider evidence of his prior criminal acts; 2) the prosecution committed misconduct in presenting testimony that defendant twice retaliated against a friend of decedent in an unrelated matter; 3) the prosecution committed misconduct in presenting altered physical evidence taken from an unrelated case involving a crime for which Petitioner had previously been acquitted and to which another individual had confessed guilt; and 4) trial counsel was ineffective in failing to call known alibi witnesses and in not investigating Petitioner's claims that another person had confessed to the crimes for which he was trial. See Pet. at 9-10.
The Commonwealth contends, and this court finds, that Petitioner is not entitled to federal habeas review or relief, because his claims are procedurally barred.
II. DISCUSSION
A. AEDPA Statute of Limitations
1. General Provisions
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, generally requires that all habeas corpus petitions be filed within one year of the date on which a state court judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). A state judgment of conviction is final once direct review is concluded or the time for seeking such review has expired. See id. Any elapsed time between the issuance of a final judgment and the institution of a petition for state collateral review is subtracted from the allotted year. See Swartz v. Meyers, 204 F.3d 417, 419 n. 2 (3d Cir. 2000).
While the date on which the petitioner's conviction becomes final is typically the "run" date for the limitations period, see 28 U.S.C. § 2244(d)(1), the statute also permits the limitation period to run from the latest of several events:
(d)(1)(B) the date on which the impediment to filing an app lication created by State action in violation of the Constitution or laws of the United State 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) (B)-(D). These additional deadlines are not herein applicable.
Petitioner's direct appeal was dismissed by the Pennsylvania Superior Court on January 8, 1998. He did not further appeal the judgment of conviction, therefore, it became final on or about February 9, 1998, when his thirty (30) day deadline for seeking review in the Pennsylvania Supreme Court expired. Thus, Petitioner had one year, or until February 9, 1999, to pursue his federal claims. Petitioner filed the instant Petition on July 2, 2004, more than five years after the expiration of his AEDPA year. Therefore, unless a tolling exception applies, Petitioner's federal habeas filing is time-barred.
The Superior Court held that, although the 30th day after the dismissal of Petitioner's appeal was February 7, 1998, a Saturday, Petitioner was accorded until February 9, 1998 to file a timely allocatur petition. See Comm onw ealth v. Edwards, 823 A.2d 10, 24, 1 n. 1 (Pa Super. 200 3) ( citing 1 Pa.C.S. § 1908).
2. Statutory Tolling
If, prior to expiration of his full AEDPA year, Petitioner timely sought collateral review, "[t]he time during which [that] properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim [was] pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2); See generally Artuz v. Bennett, 531 U.S. 4, 9 (2000). A "properly filed" application for collateral review is "one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). See also Artuz v. Bennett, 531 U.S. 4, 9 (2000) (noting that an application for collateral review is "properly filed" if its "delivery and acceptance are in compliance with the applicable laws and rules governing filings," i.e. the form of the document) ( citing Lovasz); Fahy, 240 F.3d at 243. Furthermore, pendency "includes the time for seeking discretionary review, whether or not discretionary review is sought." Nara, 264 F.3d at 317 (3d Cir. 2001), quoting Swartz v. Meyers, 204 F.3d 417, 421-422 (3d Cir. 2000) (reasoning that any petition to obtain federal habeas review filed while time remained to seek appeal with the Pennsylvania Supreme Court would be dismissed for failure to exhaust state remedies). See also Lovasz, 134 F.3d at 149 (holding a second PCRA petition to be "`pending' until the Pennsylvania Supreme Court denied his petition for allowance of appeal.")
Petitioner filed two post-conviction relief petitions in state court. The first PCRA petition extended Plaintiff's AEDPA year, because it was "properly" (timely) filed on October 7, 1998 (after 241 days of Petitioner's AEDPA year had lapsed) and remained "pending" until February 6, 2001, when the state's highest court denied allocatur. Since 125 days of Petitioner's AEDPA year remained as of February 6, 2001, Petitioner still had approximately four months, or until June 11, 2001, to timely file his habeas corpus petition; he failed to do so.
Petitioner's second PCRA petition, filed on January 30, 2002, did not further extend Petitioner's AEDPA limitation period. First, this filing occurred six months after the AEDPA deadline had expired and, therefore, did not increase Petitioner's time to pursue his federal rights. Second, the state Superior Court expressly found this PCRA petition to be late, thus, it was not "properly filed," according to AEDPA requirements, and, consequently, could not invoke statutory tolling provisions. See 42 Pa. C.S.A. § 9545(b)(3); Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir. 2001), cert. denied, 122 S. Ct. 323 (2001).
On April 24, 2002, the trial court issued a Notice of intent to dismiss the petition, unless Petitioner provided evidence that "the claim was not raised in a timely manner due to one of the statutory enumerated exceptions" to the PCRA time limitation. See Comm onw ealth v. Edwards, Ct. Com. Pl. Phila. County, No. 9502-0937 2/2, Notice of Apr. 24, 2002, Poserina, J. No additional information was supplied to the PCRA co urt, therefore, by order dated May 30, 2002, the PCRA court dismissed the post-conviction filing without a hearing, because Petitioner failed to establish his "right to post-conviction relief by a preponderance of the evidence." Commonwealth v. Edwards, Ct. Com. Pl. Phila. County, No. 9502-0937 2/2, Order May 30, 2002, Poserina, J. Pennsylvania Superior Court affirmed the trial court's ruling that Petitioner's filing was untimely. See Commonwealth v. Edwards, 823 A.2d 1024 (Pa.Super. 2003).
3. Equitable Tolling
Petitioner, nevertheless, may be eligible for equitable tolling. The Third Circuit has held that the one-year period of limitation in § 2244(d)(1) does not impose a jurisdictional bar. Thus, district courts may equitably toll the one-year period of limitation when the "principles of equity would make [the] rigid application [of a limitation period] unfair." See Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). Such relief is appropriate,
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 (alterations in original) (citations omitted). Specifically, equitable tolling is warranted
(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 mistakenly in the wrong forum.Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted) (emphasis added).
Application of Miller criteria to the facts of this case does not entitle Petitioner to equitable relief. Although Petitioner makes no explicit equitable tolling argument, he claims that, after the Supreme Court of Pennsylvania denied allocatur from the Superior Court's affirmance of the trial court's denial of relief on his first PCRA petition, "counsel advised [Petitioner] he had one year to file another PCRA in that first one was to regain direct appeal rights back." Pet. at 7. Inaccurate advice of counsel, as alleged by Petitioner, neither compels nor permits equitable tolling. See Johnson v. Hendricks, 314 F.3d 159 (3d Cir. 2002) (holding attorney's miscalculation of habeas filing deadline under AEDPA not to be an extraordinary circumstance warranting equitable tolling). Thus, Petitioner has failed to allege or demonstrate that any "extraordinary circumstance" external to himself unfairly prohibited compliance with AEDPA's time limitation.
Petitioner asserts that he timely filed his petition in an incorrect forum. Specifically, he allegedly filed an "appeal to Pa. Supreme Court, but served same upon trial Judge by certified mail; but judge never transmitted same per Rule; filed mandamus; denied at 138-EM-2003 on May 26, 2004." Id. A fair reading of the tolling provision of ADEPA would seem to require that Petitioner filed his federal habeas action, in an incorrect forum. The misdirected petition in this instance was state related. Further, Petitioner has not asserted that any government agent actively misled him as to habeas corpus filing requirements or prevented him from asserting his rights.
Also, Petitioner has failed to evince recently discovered facts or otherwise allege or demonstrate that he exercised "reasonable diligence" in investigating and pursuing his federal claims. Petitioner appears to claim he was unable to timely assert his second PCRA petition or federal claims, pro se, because of "knowing nothing about law or procedures." Pet. at 7. This stance is not persuasive as Petitioner, pro se, successfully filed an initial PCRA and appeals. Moreover, Petitioner's "misfiled" petition(s) whether state or federal (PCRA or state mandamus) were submitted years beyond the date the AEDPA deadline expired; therefore, they would hardly qualify under Miller as timely assertions of his rights in an improper forum. Petitioner even delayed filing this petition more than a year after the Superior Court dismissed his second PCRA for being late. The record evinces no newly discovered evidence or recent change in constitutional law to excuse his failure promptly to seek habeas relief. Based on Petitioner's dilatory behavior, I find that no injustice will occur if this Petition is not reviewed on the merits. The record, devoid of factual justification for equitable tolling, warrants dismissal on procedural grounds, without a hearing.
CONCLUSION
For the foregoing reasons, this Court finds that Petitioner is ineligible for equitable tolling of the AEDPA deadline. Thus, he is not entitled to federal habeas review. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 29th day of December 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED without an evidentiary hearing. Petitioner has not met statutory requirements to have his time-barred case heard. Moreover, Petitioner has not shown that any reasonable jurist could find it debatable that this petition is procedurally barred. Therefore, there is no probable cause to issue a certificate of appealability.