Opinion
CIVIL ACTION NO. 02-8314
August 11, 2003
REPORT AND RECOMMENDATION
This is a counseled Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by an individual currently incarcerated at the State Correctional Institute at Waymart, PA. For the reasons that follow, I recommend that the petition be dismissed as untimely.
I. Factual and Procedural Background
On October 22, 1993, following a bench trial before the Honorable Albert R. Subers, in the Court of Common Pleas for Montgomery County, Petitioner William J. Fried ("Fried") was convicted of involuntary deviate sexual intercourse, statutory rape, corruption of the morals of a minor, and indecent exposure. Petition at ¶¶ 1-4. His conviction was upheld on appeal, his Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on November 30, 1995, and, finally, his petition for a writ of certiorari was denied by the United States Supreme Court on May 13, 1996. Exhibits C, D and E to the Commonwealth's Response.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104, 132, 110 Stat. 1214 (April 24, 1996), Fried's deadline for filing a petition for habeas corpus relief was May 13, 1997, one year after the United States Supreme Court denied certiorari.United States v. Dufiis, 174 F.3d 333, 335 (1999). Fried filed a timely petition in this Court on May 17, 1996. District Court Docket for Case No. 96-cv-3794, attached to Response as Exhibit F.
The first three claims Fried raised in his first petition for a writ of habeas corpus were not ruled upon because they were unexhausted; the fourth, however, was denied on its merits on September 9, 1997.Id. at Entry 25; Fried's Memorandum of Law at 5. The Court of Appeals for the Third Circuit denied Fried's request for a certificate of appealability on April 3, 1998. Id. at Entry 28.
On November 3, 1999, Fried filed a document entitled Petition for Extraordinary Relief in the Court of Common Pleas for Montgomery County.See Commonwealth v. Fried. Case No. 06251-91 (C.C.P. Montgomery March 22, 2000), attached to Response as Exhibit G.
The Honorable Judge Del Ricci of the Court of Common Pleas for Montgomery County denied Fried's Petition for Extraordinary Relief.Id. He explained that once a conviction was confirmed on appeal, the sole viable means for obtaining relief was the filing of a petition under Pennsylvania's Post-Conviction Relief Act, ("PCRA"), 42 Pa. C.S.A. § 9542.
Moreover, Judge Del Ricci continued, even if he were to deem Fried's filing to be a PCRA petition, he would be compelled to dismiss it as untimely, since the PCRA permits a petition to be filed no later than one year from the date the judgment became final. Id. (citing 42 Pa. C.S.A. § 9545(b)(1)). Judge Del Ricci determined that Fried's judgment became final on the day that his appeal on his first habeas petition was rejected by the Third Circuit, i.e., April 10, 1998. Since Fried's Petition for Extraordinary Relief was filed roughly 19 months after that, on November 3, 1999, it would be an untimely PCRA petition.
As noted above, the Third Circuit Docket shows that Fried's appeal was dismissed on April 3, 1998. This small discrepancy does not affect the outcome in this matter.
Judge Del Ricci's decision was affirmed by the Superior Court of Pennsylvania on November 9, 2000. Exhibit H to Response. Fried's petition to the Pennsylvania Supreme Court for allowance of appeal was denied on May 3, 2001. Exhibit I to Response.
Fried filed an Application for Leave to File Second or Successive Petition Pursuant to 28 U.S.C. § 2244(b) on September 19, 2002, in the Court of Appeals for the Third Circuit. Docket Sheet for Appeals Docket 02-3604, attached as Exhibit J to Response. The Court of Appeals ruled on October 18, 2002, that Fried's first habeas corpus petition should have been treated as a "mixed petition," raising issues not previously raised before a Commonwealth court, and dismissed without prejudice to Fried's ability to re-file once his claims were exhausted.Id. (citing Rose v. Lundy, 445 U.S. 509 (1982)).
Fried filed the present Petition for habeas corpus relief on November 21, 2002. In it, he argues that he was deprived of the presumption of innocence due to remarks by the trial judge in the middle of trial. This claim was raised in his state Petition for Extraordinary Relief.
II. Discussion
Since the argument Fried raises here was raised before the Pennsylvania Supreme Court, he has now properly exhausted his state remedies. 28 U.S.C. § 2254(b)(1)(A); Carter v. Vaughn, 62 F.3d 591, 594 (3d Cir. 1995). Nevertheless, his Petition must be dismissed as untimely.
Except in a few enumerated circumstances which do not apply here, there is a one-year limitations period on applications for writs of habeas corpus by individuals in state custody, and it begins to run from the date on which the petitioner's judgment became final by the conclusion of direct review. 28 U.S.C. § 2244(d)(1). Fried's judgment became final within the meaning of this statute on November 30, 1995, the day upon which the Pennsylvania Supreme Court denied his Petition for Allowance of Appeal. However, as noted above, because Fried's judgment became final before AEDPA was passed, his deadline was extended to April 23, 1997.
Fried's first habeas corpus petition was timely filed on May 17, 1996. However, the present Petition was plainly filed long after April 23, 1997. There are certain conditions under which the running of the AEDPA statute of limitations may be tolled. Specifically, the statute provides:
The 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). Nevertheless, Fried does not meet these conditions.
On April 23, 1997, when his statute of limitations ran, Fried's first petition for habeas corpus relief was actually still pending in the federal courts. This does not toll the statute, however, even in a case like this in which the petition must be deemed (by virtue of the Third Circuit's later ruling) to have been dismissed without prejudice to re-file.
The United States Supreme Court decided this issue in Duncan v. Walker, 533 U.S. 167 (2001). There, Walker's first habeas petition was dismissed without prejudice because it was not clear from the face of the petition whether all claims were exhausted. By the time Walker filed a second habeas corpus petition, the one-year statute of limitations had run.
The Court held that Walker's second petition was properly dismissed as untimely, because a federal habeas corpus petition is not an "application for State post-conviction or other collateral review," as required for a tolling of the statute of limitations under section 2244(d)(2). Duncan, 533 U.S. at 181-182. Justice O'Connor, writing for the majority, wrote that to hold otherwise would dilute the strong incentive section 2244(d)(2) provides for litigants to exhaust their state remedies before filing federal suits, and encourage the sort of piecemeal litigation the exhaustion requirement is designed to reduce.Id. at 181.
Walker, unlike Fried, never returned to state court between the dismissal of his first habeas corpus petition and the filing of his second petition. As section 2244(d)(2) states, a "properly filed" petition for state collateral relief would have tolled the statute. Fried's Petition for Extraordinary Relief, however, does not help him. For one thing, the federal statute of limitations had already run when Fried's state Petition was filed. The Petition for Extraordinary Relief could not restart the already-expired federal statute of limitations. The section 2244 tolling provisions can only "pause a clock that has not yet fully run"; they cannot "restart the clock at zero." Blasi v. Attorney Gen, of the Commonwealth of Pa., 30 F. Supp.2d 481, 485 (M.D. Pa. 1998).
Secondly, as Judge Del Ricci explained, even construed as a PCRA petition, Fried's filing was defaulted as untimely. A PCRA petition defaulted under an independent and adequate state rule, such as the PCRA's limitations provision, is not "properly filed" within the meaning of section 2244(d)(2). Coleman v. Thomas, 501 U.S. 750 (1991).
It is true that the section 2244(d)(1) one-year time limitation is subject to equitable tolling in rare instances. Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 617 (3d Cir. 1998). However, equitable tolling is only proper when a petitioner has in some extraordinary way been prevented from asserting his rights. Id. at 618-619. The petitioner must show that he exercised reasonable diligence in investigating and bringing his claim.
Fried has conceded that the claim he brings here was not raised in his direct appeal and was therefore unexhausted at the time it reached the federal court in his first federal habeas petition. Fried's Memorandum of Law at 5, 10. He has not shown that he was prevented in any extraordinary way from exhausting that claim — along with the other unexhausted claims — in his direct appeal before filing his first habeas petition. It was this failure to exhaust his habeas claims initially which caused the statute of limitations to run before his claims could be addressed on the merits.
Fried suggests that his default is somehow the result of the fact that he was unaware, until the Third Circuit's October 18, 2002 ruling, that he was entitled to file a second habeas corpus petition as of right. However, there is little logic in this. Since the statute of limitations ran while his first petition was still pending, the present habeas Petition would have been untimely filed, whatever Fried's belief before October 18, 2002, and whether or not the second habeas petition was deemed "successively filed."
Fried also argues that the Third Circuit's October 18, 2002 ruling that he could file a new petition for a writ of habeas corpus without prior leave represented an adjudication in his favor on the issue of timeliness. This, too, is untrue. The Third Circuit was faced only with the issue of whether Fried's new petition was properly deemed successive. It did not address timeliness. Even if it had, it would not have been entitled to ignore section 2244(d) and Duncan v. Walter, supra, Finally, the Commonwealth's failure to address timeliness before the Third Circuit at that point does not constitute a waiver, as Fried claims, since it has raised it here, in the proper forum.
Fried has not argued that his second petition should relate back to the filing date of the first petition. This is appropriate, since "if a petition is dismissed for failure to exhaust state remedies, a subsequent petition filed after exhaustion is completed cannot be considered an amendment to the prior petition but must be considered a new action." Jones v. Morton, 195 F.3d 153, 160-61 (3d Cir. 1999).
III. Conclusion
In accordance with the above discussion, I make the following:
RECOMMENDATION
AND NOW, this day of August, 2003, it is RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED as untimely. There isno basis for the issuance of a certificate of appealability.