Opinion
Civil Action No. 04-0888.
August 17, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Anthony Van Gore ("Gore"), an individual currently incarcerated in the State Correctional Institution in Frackville, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed, but that a certificate of appealability be granted to determine whether equitable tolling of the federal statute of limitations is appropriate for the instant petition.
FACTS AND PROCEDURAL HISTORY :
On December 22, 1992, a jury sitting before the Honorable Mary D. Colins, Court of Common Pleas of Philadelphia County, convicted Gore of rape, involuntary deviate sexual intercourse, and kidnapping. Gore was sentenced to an aggregate term of seventeen and one-half (17½) to thirty-five (35) years of imprisonment.
Gore filed a direct appeal in the Pennsylvania Superior Court, which affirmed the judgment of sentence on August 9, 1994.Commonwealth v. Gore, 653 A.2d 1229 (Pa.Super. 1994) (table). The Pennsylvania Supreme Court denied Gore's petition for allowance of appeal on December 2, 1994. Commonwealth v. Gore, 653 A.2d 1227 (Pa. 1994) (table).
On January 8, 1996, Gore filed a petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541,et seq. The PCRA court denied relief on September 9, 1998. Gore filed a timely notice of appeal, but his case was dismissed on March 10, 1999, for failure to file a brief with the Pennsylvania Superior Court.
On March 29, 2000, Gore filed a second PCRA petition seeking reinstatement of his appeal from the denial of his first PCRA petition. On June 9, 2000, the PCRA court granted Gore's petition for relief, thereby reinstating, nunc pro tunc, his right to appeal the September 9, 1998, denial of relief.
Gore filed an appeal in the Superior Court presenting claims of ineffective assistance of trial and appellate counsel. In opposition, the Commonwealth asserted that both the PCRA court and Superior Court lacked jurisdiction over Gore's second PCRA petition because that petition was untimely. Commonwealth v. Gore, 782 A.2d 1054 (Pa.Super. 2001) (table); No. 2135 EDA 2000, at 3 (Pa.Super. July 10, 2001) (unpublished memorandum). In rejecting this argument, the Superior Court construed Gore's second PCRA petition as "a timely extension of his first petition." Id. at 4-5. As a result, the Superior Court held that the PCRA court had properly reinstated Gore's PCRA appeal rights, nunc pro tunc. Id. at 5. In proceeding to address the merits of Gore's claims, the Superior Court determined that appellate counsel had been ineffective for failing to raise trial counsel's ineffectiveness in not petitioning for a mistrial on the basis of the prosecutor's intimidation of a defense witness. Id. at 9. Consequently, the court vacated Gore's judgment of sentence and remanded the case for a new trial. Id. at 14.
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 seeking allocatur in the Pennsylvania Supreme Court, the Commonwealth once again asserted its argument that the PCRA's statute of limitations divested the lower courts of jurisdiction to hear Gore's substantive claims. The Pennsylvania Supreme Court agreed, and on October 22, 2003, determined that Gore's second PCRA petition was untimely. Commonwealth v. Gore, 843 A.2d 1220 (Pa. 2003). In doing so, the court relied upon Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003), wherein the court held, in a factually similar situation, that none of the statutory exceptions to the one- (1-) year filing requirement the PCRA statute allowed the courts to treat a facially-untimely PCRA petition as an "extension" of a timely first application. Id. As a result, the Supreme Court reversed the decision of the Superior Court vacating Gore's judgment of sentence. Id.
These exceptions include interference by government officials in the presentation of a claim, after-discovered facts or evidence, and an after-recognized constitutional right. 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(i), (ii), and (iii).
Gore filed the instant petition for writ of habeas corpus on February 26, 2004, 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) (citing Houston v. Lack, 487 U.S. 266 (1988)). Gore signed his habeas petition on February 26, 2004; therefore, we will assume that he presented his petition to prison authorities on that date.
(1) the PCRA court deprived him of his due process rights by dismissing his first PCRA petition without the benefit of an evidentiary hearing;
(2) the trial court erred in denying his motion for a mistrial when the prosecution improperly intimidated and discouraged Gore's main witness from testifying;
(3) appellate counsel was ineffective for failing to file an appellate brief in his PCRA appeal;
(4) he was denied his equal protection rights when he was deprived of the right to have his appeal reinstated;
(5) appellate counsel was ineffective for failing to present the issue that the trial court had erroneously permitted opinion testimony by Dr. Joseph Zeccardi as to whether the sexual activity between Gore and the victim was consensual; and
(6) counsel was ineffective for failing to move for a mistrial when the prosecution intimidated Gore's main witness in order to prevent him from testifying.
On July 28, 2004, Respondents filed an answer asserting that Gore's habeas petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").
DISCUSSION :
I. 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). Gore's conviction became final when his direct appeals ended in 1995. Because his conviction became final prior to April 24, 1996, the effective date of the AEDPA, Gore 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 v. Morton, 134 F.3d 109, 111-12 (3d Cir. 1998).
A. Effect of First PCRA Petition
When the one- (1-) year "grace period" began on April 24, 1996, Gore's first PCRA petition was pending in the state courts. Because this petition was filed in accordance with Pennsylvania's procedural requirements, it is considered a "properly filed application" for post-conviction relief, thereby tolling the one (1) year limitation period. See 28 U.S.C. § 2254(d)(2) (the time during which a "properly filed application" for state post-conviction review is pending shall not be counted toward the one (1) year period of limitation); Artuz v. Bennett, 531 U.S. 4 (2000) ("an application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings" such as "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee"); Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944 (2001). Such a petition is considered "pending" within the meaning of § 2244(d)(2) during the time a state prisoner is pursuing his state post-conviction remedies, including the time for seeking discretionary review of any court decisions whether or not such review was actually sought. See Swartz, 204 F.3d at 424. Gore's petition was thus pending until April 10, 1999, thirty (30) days after the Superior Court dismissed his PCRA appeal. At this time, the one (1) year grace period began to run and Gore had until April 10, 2000, to file a timely § 2254 petition.
B. Effect of Second PCRA Petition
On March 29, 2000 — 354 days into his one (1) year grace period — Gore filed his second PCRA petition. Because the Pennsylvania Supreme Court dismissed this petition as untimely, it is not considered a "properly filed application" for post-conviction relief. 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.),cert. denied, ___ U.S. ___, 124 S.Ct. 317, 157 L.Ed.2d 219 (2003) (to determine whether state petition for post-conviction relief is "properly filed," as required to toll limitations period for filing federal habeas petition, a federal court must "`look to state law governing when a petition for collateral relief is properly filed'" and "`defer to a state's highest court when it rules on an issue'") (quoting Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir.), cert. denied, 534 U.S. 944 (2001). As such, the period of time that Gore's second, untimely PCRA petition was pending in the state courts (from March 29, 2000 until December 31, 2003) did not toll the one (1) year limitation period.
Indeed, in reviewing the United States Supreme Court decision in Carey v. Saffold, supra, the Third Circuit noted that "we read the [Carey] decision as holding that if a state's Supreme Court has determined that a petition was not timely, then we must hold that it was not `properly filed.'" Merritt, 326 F.3d at 168 (emphasis in original).
Gore submitted the instant motion for filing on February 26, 2004, over three (3) years after the limitation period had expired on April 10, 2000. He does not assert that there has been an impediment to filing his habeas petition which was caused by state action, that his petition involves a right which was newly recognized by the United States Supreme Court, or that there are new facts which could not have been previously discovered. See 28 U.S.C. § 2244(d)(1)(B)-(D). Consequently, Gore would be barred from presenting his claims under § 2254, unless the instant petition is subject to equitable tolling.
Even if we were to have tolled the statute of limitations for Gore's second PCRA petition, the instant petition would still be untimely. When the Pennsylvania Supreme Court denied post-conviction relief for Gore's second PCRA petition on October 22, 2003, only eleven (11) days remained of the federal statute of limitations. See Johnson v. Hendricks, 314 F.3d 159, 161-162 (3d Cir.), cert. denied, 538 U.S. 1022 (2003) (holding that 28 U.S.C. § 2244(d)(2) excludes time during which a properly filed state post-conviction petition is pending, but does not reset date from which the applicable one- (1-) year limitations period begins to run); see also Stokes v. District Att'y of the County of Phila., 247 F.3d 539, 543 (3d Cir. 2001) (the ninety (90) day period 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 AEDPA limitations period). As such, in order to file in a timely manner, Gore was required to have filed the instant petition by November 2, 2003. Consequently, his filing date of February 26, 2004, is over three (3) months after the limitation period had expired.
C. 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." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
I 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. Gore presents us with no evidence that he either diligently pursued his claims or was prevented in some extraordinary way from doing so. Because Gore 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, Gore's petition must be dismissed as untimely.
To the extent that Gore would argue that this case is subject to equitable tolling because he relied upon the lower state courts' determination that his second PCRA petition was "properly filed," I find that this argument does not provide a basis for equitable tolling because it fails to establish that Gore was prevented in some extraordinary way from asserting his rights. As previously noted, Gore had only eleven (11) days remaining of the federal statute of limitations when the Pennsylvania Supreme Court determined that his second PCRA petition was time-barred. Instead of promptly filing his federal habeas petition, Gore waited more than four (4) months to do so. Because Gore did not diligently file the instant habeas petition once he discovered that his second PCRA petition was untimely, I find that equitable tolling is not appropriate. See Hentosh v. Herman M. Finch University of Health Sciences, 167 F.3d 1170, 1175 (7th Cir. 1999) (even in situations in which equitable tolling initially applies, a party must file suit within a reasonable time after realizing that such a suit has become necessary); see generally Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003) (noting that one (1) month would be "time enough" for a petitioner, "acting with reasonable diligence, to prepare and file at least a basic pro se habeas petition").
D. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(1)(A), to appeal a final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, a petitioner must first obtain a certificate of appealability ("COA") from a district or circuit court judge. See United States v. Cepero, 224 F.3d 256, 259 (3d Cir. 2000) (a district court judge is authorized to certify issues for appeal) (citing 28 U.S.C. § 2253(c)(1)). The certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right," and the showing must be made for each issue for which the certificate is sought. 28 U.S.C. § 2253(c)(2), (3); see also Slack v. McDaniel, 529 U.S. 473, 483 (2000).
This case presents the unfortunate results of failing to properly calculate the intricate interplay of the PCRA statute of limitations and the federal habeas statute of limitations. As previously discussed, the Pennsylvania Superior Court determined that trial counsel had been ineffective for failing to request a mistrial due to the prosecution's improper intimidation of a defense witness. Despite the potential merit of that claim in the federal habeas context, I find that federal and Third Circuit law direct the conclusion that Gore's lack of diligence in filing the instant petition, however unintentional, forecloses our review of the issue. I reach this conclusion, however, with hesitation and note the lamentable consequences of the application of that law. I also recognize that learned jurists may disagree with my finding that the instant petition is not subject to equitable tolling. See Slack, 529 U.S. at 478 (a COA is appropriate where "jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (a COA is appropriate where "jurists of reason could disagree with the district court's resolution of [petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further"). Consequently, I recommend that this issue be certified for appeal.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DISMISSED. IT IS FURTHER RECOMMENDED that a certificate of appealability shall issue to determine whether equitable tolling of the federal statute of limitations is appropriate for the instant petition for a writ of habeas corpus.
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. A certificate of appealability shall issue to determine whether equitable tolling of the federal statute of limitations is appropriate for the instant petition for a writ of habeas corpus.