Opinion
CIVIL ACTION No. 03-4336
January 14, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Thaddeus Ford ("Ford"), an individual currently incarcerated in the Graterford State Correctional Institution. For the reasons that follow, I recommend that the petition be dismissed.
FACTS AND PROCEDURAL HISTORY :
The state court summarized the facts underlying this case as follows:
On June 11, [1980,] [Ford] and two [2] codefendants, Robert McClary and Clarence Morris, went to the Island Hut Restaurant in Philadelphia. The victim, Reginald Short, and Fred Williams were in front of the restaurant. Mr. Morris served as a lookout. [Ford] handed Mr. McClary a gun and Mr. McClary fired six [6] shots at the victim. The victim died as a result. The three [3] fled and bragged to their friends that they had killed Mr. Short. [Ford] and the codefendants were subsequently arrested.Commonwealth v. Ford, 601 A.2d 1298 (Pa.Super. 1991) (table); No. 3237 Phila. 1991, at 2 (Pa.Super. Oct. 9, 1991) (unpublished memorandum).
On August 4, 1983, a jury found Ford guilty of first-degree murder, criminal conspiracy and possession of an instrument of crime. After denying post-trial motions, the trial court sentenced Ford to life imprisonment on the murder charge. Ford filed a direct appeal in the Pennsylvania Superior Court, which was dismissed on December 3, 1986, for failure to file a brief.
Ford also received a concurrent sentence of five (5) to ten (10) years of imprisonment on the conspiracy charge, and a concurrent sentence of two and one-half (2 ½) to five (5) years of imprisonment on the possession of an instrument of crime charge.
Ford then filed his first petition for post-conviction relief pursuant to Pennsylvania's Post Conviction Hearing Act ("PCHA"), 42 Pa. Con. Stat. Ann. § 9541, et seq. (superseded and replaced by the Post Conviction Relief Act, "PCRA," in 1988). After a hearing on August 2, 1989, the Honorable James J. McCrudden, Philadelphia Court of Common Pleas, granted Ford leave to file a direct appeal nunc pro tune, and rejected Ford's other claims.
Represented by Norris E. Gelman, Esquire, Ford appealed nunc pro tune to the Pennsylvania Superior Court, claiming that trial counsel was ineffective for not objecting to the trial court's jury instructions on alibi evidence and circumstantial evidence. The Superior Court affirmed the judgment of sentence on October 9, 1991. Commonwealth v. Ford, 601 A.2d 1298 (Pa.Super. 1991). On March 18, 1992, the Pennsylvania Supreme Court denied Ford's petition for allowance of appeal. Commonwealth v. Ford, 1006 E.D. Allocatur Docket 1991.
On January 17, 1996, Ford filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. Jules Epstein, Esquire, was appointed to represent Ford and subsequently filed an amended petition raising several claims of ineffective assistance of counsel. On January 27, 1997, the PCRA court dismissed Ford's PCRA petition.
Ford filed an appeal in the Superior Court claiming:
(1) appellate counsel was ineffective for not claiming that Ford was entitled to a new trial based on Fred Williams' recantation of his trial testimony;
(2) trial counsel was ineffective for failing to object to the trial court's alibi charge;
(3) trial counsel was ineffective for failing to request jury instructions on the significance of the crimen falsi conviction and open criminal charges against Fred Williams; and
(4) trial counsel was ineffective for failing to object to portions of Fred Williams' prior statement that referred to gang activity and seek a limiting instruction regarding those references.
On March 31, 1998, the Superior Court affirmed the dismissal of Ford's PCRA's petition, finding that it was untimely filed. Commonwealth v. Ford, 718 A.2d 340 (Pa.Super. 1998) (table); No. 478 Phila. 1997 (Pa.Super. March 31, 1998) (unpublished memorandum). Ford filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied on July 23, 1998. Commonwealth v. Ford, No. 167 E.D. Allocatur Docket 1998.
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).
In the meantime, on July 2, 1997, Ford had also filed an "Application for Remand for Hearing on After-Discovered Evidence and Withdrawal of Briefing Schedule." In this "application," Ford alleged that on April 1, 1997, his counsel received a videotape from the Philadelphia District Attorney's Office ("DA's Office") containing a lecture on jury selection given by former Assistant District Attorney Jack McMahon ("McMahon"). Ford stated that he was prepared to file a motion for a new trial based upon "after-discovered" evidence of supposed violations of Batson v. Kentucky, 476 U.S. 79 (1986), and/or Swain v. Alabama, 380 U.S. 202 (1968). On July 22, 1997, the Pennsylvania Superior Court denied the application without prejudice to Ford's right to raise the issue in a subsequent PCRA petition.
On September 24, 1998, Ford filed another pro se PCRA petition alleging that the DA's Office videotape made by McMahon provided "after-discovered" evidence of a Batson/Swain violation. Ronald M. Joseph, Esquire, was appointed to represent Ford and subsequently filed an amended petition on January 21, 1999. On July 23, 1999, the PCRA court dismissed the PCRA petition as untimely. Ford did not appeal the denial of post-conviction relief.
On May 7, 2001, Ford filed another pro se PCRA petition which was dismissed as untimely on September 5, 2001. Ford appealed to the Superior Court claiming:
(1) his constitutional rights were violated by the prosecutor's use of peremptory challenges to exclude African-American jurors;
(2) the PCRA court abused its discretion in denying habeas corpus relief by ruling that the petition filed on May 7, 2001, constituted a PCRA petition; and
(3) the jury instructions at his trial deprived him of due process, and created a miscarriage of justice, in that they allegedly relieved the Commonwealth of the burden of proving that he had the specific intent to kill.
Ford alleged that this claim was predicated upon the existence of "after-discovered evidence" of the DA's Office videotape made by McMahon and a "statistical analysis" of McMahon's peremptory strikes in sixteen (16) cases.
On January 28, 2003, the Superior Court affirmed the denial of post-conviction relief after finding that Ford's petition was untimely. Commonwealth v. Ford, 819 A.2d 114 ( Pa. Super. 2003) (table); No. 2744 EDA 2001 (unpublished memorandum). The Pennsylvania Supreme Court denied Ford's petition for allowance of appeal on June 5, 2003. Commonwealth v. Ford, No. 115 EAL 2003.
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 Ford'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. Ford, No. 2744 EDA 2001, at 7-9.
Ford filed the instant petition for writ of habeas corpus on July 16, 2003, claiming:
Generally, a pro se petitioner's habeas petition is deemed filed at the moment he delivers it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citingHouston v. Lack, 487 U.S. 266 (1988)). Ford signed his original habeas petition on July 16, 2003; therefore, we will assume that he presented his petition to prison authorities on that date.
(1) the prosecutor used peremptory strikes to exclude blacks from his jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986); and
(2) the trial court's jury instructions on accomplice liability violated the due process in that they relieved the Commonwealth of its burden of proving a specific intent to kill.
Respondents have filed an answer asserting that Ford's habeas petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") or, in the alternative, that his claims provide no basis for federal habeas relief.
DISCUSSION ;
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). Ford's conviction became final when his direct appeals ended in 1992. See S.Ct.R. 13(1) (stating petitioners have ninety (90) days to file petition for a writ of certiorari). Because his conviction became final prior to April 24, 1996, the effective date of the AEDPA, Ford 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, 134 F.3d at 111-12.
Ford submitted the instant motion for filing on July 16, 2003, over six (6) years after the limitation period had expired on April 23, 1997. He does not assert that there has been an impediment to filing his habeas petition which was caused by state action, or that his petition involves a right which was newly recognized by the United States Supreme Court. 28 U.S.C. § 2244(d)(1)(B), (C). Ford does allege, however, that there are new facts regarding jury selection which could not have been previously discovered and which impeded his ability to file his habeas petition in a timely manner. 28 U.S.C. § 2244(d)(1)(D). Ford's claim of "newly-discovered evidence" is predicated upon the existence of the DA's Office videotape made by McMahon which allegedly demonstrates discriminatory jury selection practices in the DA's Office. See Pet'r Mem. of Law, at 3. Ford also contends that he has obtained a "statistical analysis" that proves that McMahon, the prosecutor in his case, followed discriminatory practices in his trial and in thirty-four (34) cases other than his. Id.
Although Ford filed a PCRA petition on January 17, 1996, the Pennsylvania Superior Court found the petition was untimely. Because this petition was not filed in accordance with Pennsylvania's procedural requirements, it is not considered a "properly filed application" for post-conviction relief which would toll the one (1) year limitation period. See 28 U.S.C. § 2254(d)(2); 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. 2003) (to determine whether state petition for post-conviction relief is "properly filed," as required to toll limitations period for filing federal habeas petition, federal court must look to state court's conclusion as to whether the petition for collateral relief is properly filed).
On September 24, 1998, and on May 7, 2001, Ford filed two (2) more PCRA petitions. In a similar manner, these petitions could not have tolled the limitations period because they were dismissed as untimely and would not be considered a "properly filed applications" for post-conviction relief. 28 U.S.C. § 2254(d)(2); Carey, supra; Merritt, supra. Consequently, the time during which these appeals were pending would not impact this court's calculations regarding the one (1) year limitation period. Moreover, these petitions would not toll the federal statute of limitations because they were filed after the federal statute of limitations had already expired.
The DA's Office training video, Jury Selection with Jack McMahon, was produced in 1987, approximately four (4) years after Ford's trial. The alleged "statistical evidence" apparently refers to a study of the DA's Office over a seventeen-(17-) year period, including this case, by David C. Baldus, et al., "The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis," 3 U.Pa.J. Const.L. 3 (2001) ("Baldus study"). Ford specifically refers to that portion of the article entitled "The Venires of Former Philadelphia Prosecutor Jack McMahon: Case Specific Listings of Venire Members, Their Status and Disposition, and Summary Prosecutorial Strike Data."
Although Ford characterizes this evidence as "newly discovered," we find that neither the videotape, nor the Baldus study, are "new evidence" which would have hindered Ford from filing the instant petition in a timely manner. As an initial matter, the DA's Office videotape was provided to Ford's counsel on April 1, 1997, as memorialized in Ford's "Application for Remand for Hearing on After-Discovered Evidence" to the Pennsylvania Superior Court. At that time, Ford also cited to a limited amount of data on the strike rates of African-Americans and prosecutor McMahon during his trial.
Ford contends that he did not receive the relevant statistical evidence regarding McMahon's "racial discriminatory practices" until July 4, 2003, when Charles Diggs, a paralegal at Graterford Prison, provided him with the information in the Baldus study, see Pet'r Mem. of Law, at 3, 8; however, this assertion is belied by the record. On January 28, 2003, the Superior Court affirmed the dismissal of Ford's May 2001 PCRA petition noting, in part, that Ford had presented a "statistical table that allegedly demonstrates McMahon's bias against African-Americans as demonstrated in other prosecutions." Commonwealth v. Ford, No. 2744 EDA 2001, at 8. In support of the May 2001 PCRA petition, Ford had also attached to his brief a statement from Charles Diggs "in an attempt to show that he only became aware of these statistics in April of 2001, and that he timely filed his PCRA petition thereafter." Id. Clearly, the Superior Court's statement contradicts Ford's current assertion that he only became aware of relevant statistics regarding McMahon's alleged discriminatory practices in 2003. Because Ford was on notice of the statistical basis for his claim from April 2001 at the latest, we find that his assertion that the one (1) year statute of limitations did not begin to run until July 2003 is without merit. See, e.g., Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998) ("[s]ection 2244(d)(1)(D) does not convey a statutory right to an extended delay . . . while a habeas petitioner gathers every scrap of evidence that might . . . support his claim"). In any event, to the extent that Ford argues that he was precluded from presenting the instant claim until he became aware of the specific statistics found in the Baldus study, we note that the study was published in February 2001. Ford has failed to establish why, through the exercise of due diligence, he could not have discovered the statistics found in the Baldus study prior to the filing of the instant petition in July 2003, more than two (2) years later after the publication of the study. See, e.g., Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (under 28 U.S.C. § 2244(d)(1)(D), the one (1) year federal statute of limitations "commences when the factual predicate `could have been discovered through the exercise of due diligence,' not when it was actually discovered by a given prisoner").
Indeed, in the instant petition, Ford refers to the statistical evidence regarding McMahon's alleged discriminatory practices, which was supposedly provided to him by Charles Diggs in April 2001. See Pet'r Mem. of Law, at 4-5. He refers to this evidence as "1 sheet [of] statistical evidence of some [of] McMahon's murder trials." Id. at 10.
Clearly, the date on which the factual predicate of the instant claim "could have been discovered through the exercise of due diligence" was in April 1997, when the DA's Office videotape was provided to his attorney, or at the latest in February 2001, when the Baldus study was published. 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). Because Ford did not file the instant petition until July 2003, our calculations regarding the timeliness of the instant petition would not be affected by any claim Ford would make regarding this alleged "new evidence." Consequently, Ford would be barred from presenting his claims under § 2254, unless the instant petition is subject to 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." Fahv v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
We 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. As previously discussed, Ford presents us with no evidence that he either diligently pursued his claims or was prevented in some extraordinary way from doing so. Because Ford 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, Ford's petition must be dismissed as untimely.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ___ day of January, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED. There has beenno 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.