Opinion
Civil Action No. 03-CV-00040.
June 24, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Charles Julius Fripp ("Petitioner") currently is incarcerated at the State Correctional Institution at Rockview, Pennsylvania. Petitioner seeks habeas corpus relief based on alleged trial counsel and trial court errors. The Honorable John R. Padova referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, Petitioner's time-barred claims should be dismissed without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts contained in this section were gleaned from the Petition for Habeas Corpus, the Commonwealth's response, inclusive of all exhibits thereto, and the state court record.
The Commonwealth presented evidence that, on August 27, 1988, Petitioner forcibly raped J.B., his girlfriend's eight-year-old daughter. See Commonwealth v. Fripp, No. 5226 Phl. 97 (Ct. Com. Pl. June 30, 1998). Following a jury trial, on January 17, 1990, Petitioner was convicted of Rape, Corruption of a Minor, and Simple Assault. See Id. at 1-2. The Honorable Marvin R. Halbert sentenced Petitioner to seven and one-half (7½) to fifteen (15) years of imprisonment for the rape conviction; two and one-half (2½) to five (5) years of imprisonment for the corruption conviction; and one (1) to two (2) years of imprisonment for the assault conviction; all sentences are to run concurrently. See Id. at 1-2.
On January 8, 1991, Petitioner appealed his conviction to the state Superior Court. See Commonwealth v. Fripp, No. 00248, Mem. Op., 620 A.2d 1233 (Pa.Super. 1992). He alleged, inter alia, that the trial court erred in: (1) permitting a pediatrician's expert testimony that the victim's eight-millimeter vaginal opening was abnormally large; (2) allowing the same pediatriacian to testify that the abnormally large vaginal opening was consistent with the child's allegation of penetration; (3) permitting the pediatrician to testify that the absence of additional trauma was consistent with penetration; (4) refusing to instruct the jury that prior inconsistent statements made by the victim may be considered not only as substantive but also as impeachment evidence; (5) refusing to grant Petitioner's request for instructions concerning the Commonwealth's failure to produce "certain physical evidence;" and (6) permitting the introduction of rebuttal testimony. Id. On November 13, 1992, the Superior Court affirmed the judgment of sentence. Id. at 5.
The state Supreme Court, on May 18, 1993, denied allocatur. See Commonwealth v. Fripp, 626 A.2d 1155, 534 Pa. 636 (Pa. 1993) (Table). On October 12, 1993, Petitioner's request for a writ of certiorari in the United States Supreme Court was denied. See Fripp v. Pennsylvania, 510 U.S. 920, 114 S.Ct. 318, 126 L.Ed.2d 264 (1993).
Next, on September 12, 1997, Petitioner sought collateral relief, pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq., see Commonwealth v. Charles Fripp, No. 5226, 737, A.2d 805, Mem. Op. (Pa.Super.Ct. Feb. 10, 1999). On November 21, 1997, the Honorable Genece E. Brinkley dismissed the petition as untimely, without a hearing or appointing counsel. Id. at 2; see also Commonwealth v. Charles Fripp, No. 0743, Order (Ct. Com. Pl. Phila. County, Nov. 21, 1997); see also Commonwealth v. Charles Fripp, No. 5226, Mem. Op. (Ct. Com Pl. Phila. County, June 30, 1998). Petitioner appealed this dismissal to the Superior Court. On February 10, 1999, the state intermediate court reversed and remanded the case finding that, notwithstanding the fact that the petition was untimely, the PCRA court should have determined Petitioner's eligibility to proceed in forma pauperis. See Commonwealth v. Charles Fripp, 737 A.2d 805, Mem. Op. at 5.
On July 13, 1999, the PCRA court appointed John P. Cotter, Esq., to represent Petitioner; subsequently, on October 12, 1999, Petitioner's appointed counsel filed a "no-merit" Finley letter, conceding that Petitioner's PCRA petition was time barred and that "none of the exceptions of the statute appl[ied] to [Petitioner's] case." See Attorney Cotter's Finley letter; see also Respondent's Answer ("Resp.") at 13; see generally Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1998). On December 20, 1999, the Honorable Barbara Joseph dismissed the PCRA petition as frivolous, and relieved attorney Cotter of further representation of Petitioner. See Commonwealth v. Charles Fripp, CP 8907-0743, Order (Ct. Com Pl. Phila. County, Dec. 20, 1999); see also Administrative Judge John W. Herron's letter to John P. Cotter, Dec. 21, 1999.
On July 17, 2000, the PCRA court granted Petitioner's request to file an amended petition. Accordingly, on November 1, 2000, Petitioner filed an amended counseled petition. See Petitioner's Amended Petition, Nov. 1, 2000. On November 9, 2000, Petitioner filed a second amended petition. See Ct. Com. Pl. Phila. County, Docket Entry. Moreover, while this appeal was pending, on February 15, 2002, Petitioner filed a notice of appeal in the Superior Court of Pennsylvania. See Resp. at 13.
On June 20, 2002, the PCRA court again dismissed the petition as untimely. See Commonwealth v. Charles Fripp, No. 0632, Mem. Op. (Ct. Com. Pl. Phila. County, June 24, 2002). On September 26, 2002, the Superior Court dismissed Petitioner's appeal "without prejudice to [Petitioner's] rights under the [PCRA]," because counsel had failed to file an appellate brief. See Commonwealth v. Charles Fripp, No. 89-07 — 743, Order (Pa.Super.Ct. Sept. 26, 2002).
On January 3, 2003, Petitioner sought a federal writ of Habeas Corpus. See No. 2:03-CV-00040 (Docket). On March 11, 2003, the Honorable John Padova dismissed the petition, without prejudice, for failure to file the Petition utilizing stardard forms. See Docket No. 3. Petitioner, on April 21, 2004, submitted revised forms, asserting that: (1) no hearing was held following the dismissal and remand of Petitioner's PCRA petition to the trial court; (2) PCRA counsel was ineffective for failing to file an appellate brief; (3) his trial counsel was ineffective for failing to "procure a psychological evaluation of the victim" because "[t]he police detective in sex crimes used suggestive implantation procedures which caused the trial to be fundamentally unfair;" (4) trial counsel was ineffective for failing "to object to prior bad acts," specifically, "[t]he Commonwealth "set forth testimony of drugs and counsel never objected which was fundamentally unfair;" and (5) trial counsel was ineffective "for fail[ing] to object to the courts [sic] charge." Pet. at 10-11. Following a careful review of the record, this court concludes that Petitioner's claims are all timebarred and, therefore, unreviewable.
II. DISCUSSION
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 (3rd 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 application 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).
Petitioner's conviction became final on October 12, 1993, when his petition for writ of certiorari in the United States Supreme Court was denied. See Fripp v. Pennsylvania, 510 U.S. 920, 114 S.Ct. 318, 126 L.Ed.2d 264 (1993). However, since Petitioner's conviction became final before the effective date of AEDPA, he was granted a one-year grace period, or until April 24, 1997, to seek federal habeas relief. See Burns v. Morton, 134 F.3d 109 (3rd Cir. 1998). Petitioner did not file an appeal until September 12, 1997, when he simultaneously sought PCRA relief in the state superior court. See Commonwealth v. Charles Fripp, No. 5226, 737, A.2d 805, Mem. Op. (Pa.Super.Ct. Feb. 10, 1999). Between April 24, 1996 and September 12, 1997, 506 days elapsed. Thus, by the time Petitioner filed the within Petition his AEDPA deadline had already expired.
In appropriate instances, statutory or equitable tolling provisions, nevertheless, could extend the initial AEDPA deadline. See Fahy v. Horn, 240 F.3d 239 (3rd Cir. 2001). For example, if, prior to expiration of the full AEDPA year, petitioner had sought collateral relief, "[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 [would] not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). 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 (3rd Cir. 1998). See also Artuz v. Bennett, 531 U.S. 4, 9 (2000) (citing Lovasz and holding 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). The Third Circuit specifically has held that a state collateral petition that is found to be untimely by the state courts is not "properly filed" for purposes of tolling the AEDPA clock. See Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *1 (3rd Cir. Mar. 17, 2003) ("to be deemed `properly filed,' an application for collateral review in state court must satisfy the state's timeliness requirements").
Neither Petitioner's September 7, 1997 nor his November 9, 2000 PCRA petitions provide adequate grounds for equitable tolling and/or extension of Petitioner's AEDPA year. Petitioner's notice of appeal in the state Superior Court filed on February 15, 2002, likewise, did not toll the AEDPA year, since these untimely petitions were never "properly pending" for AEDPA's tolling purposes. See Merritt v. Blaine, 326 F.3d 157 (3rd Cir. 2003) (holding "[that] an untimely application for state post-conviction relief . . . was not `properly filed' for the purpose of federal habeas statute's tolling provision for the time during which a properly filed application for state post-conviction relief is pending . . . [Thus,] [a] federal habeas court [is] bound by state court's finding that habeas [P]etitioner's second state post-conviction relief petition [is] untimely"); see also Mullen, No. 2007 at 2; Commonwealth v. Mullen, Nos. 1040-1046, 1440 (Pa.Super.Ct. March 6, 2003); see also Shannon, No. 01-1308, 2003 WL 1215520 at *1. In fact, Petitioner's AEDPA deadline had lapsed before any collateral action was commenced. Inasmuch as Petitioner filed his PCRA petition beyond the AEDPA and this federal habeas action more than five years beyond the ambit of AEDPA's year, habeas review is not possible.
Potentially, equitable tolling could excuse Petitioner's delay. The Third Circuit has held that the one-year period of limitation in § 2254(d)(1) is a statute of limitations, not a jurisdictional bar. See Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3rd Cir. 1998). 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." Generally, this will occur 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). In determining the applicability of the above guidelines, it is appropriate to examine factors such as ignorance of the rules of procedure, Petitioner's credibility as to the reason for the delay, any lack of diligence, efforts toward compliance, and an understanding of the consequences of dilatory behavior. See U.S. v. Diaz, Civ.A. 95-5616, 1999 WL 391384 at *2 (E.D.Pa. May 27, 1999); see also U.S. v. Ramsey, No. 92-590-2, 1999 WL 718079 (E.D.Pa. Aug. 26, 1999). Specifically, equitable relief will be permitted: if (1) the defendant has actively misled the plaintiff, (2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3rd Cir. 1999) (citations omitted) (emphasis supplied).
Application of Miller criteria to the facts of this case does not entitle Petitioner to equitable relief. He has failed to allege or demonstrate that any "extraordinary circumstance" external to himselfunfairly prohibited compliance with AEDPA's time limitation. No government agentmisled Petitioner as to the filing requirements or prevented him from asserting his rights. Moreover, he did not timely file this petition in an incorrect forum. Furthermore, Petitioner has failed to evince recently discovered facts or otherwise allege that he exercised "reasonable diligence" in investigating and pursuing his federal claims. Petitioner delayed filing his first PCRA petition by almost four years (1431 days) after his conviction was final (i.e. no activity whatsoever is reflected on the docket from October 12, 1993 through September 1, 1997). Finally, no change in constitutional law necessitates late review of this petition. The record, devoid of factual justification for equitable tolling, warrants dismissal on procedural grounds, without a hearing.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 24th day of June 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that Petitioner's time-barred Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED without an evidentiary hearing. Petitioner has not met the procedural requirements to have his petition reviewed; therefore, he has not shown a denial of a constitutional right. Consequently, a certificate of appealability should not be issued.