Opinion
Civil Action No. 03-4443.
March 30, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a pro se petition for writ of habeas corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution ["SCI"] Dallas, Pennsylvania, where he is serving a life sentence for murder. For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed as untimely under 28 U.S.C. § 2244(d)(1).
BACKGROUND
The facts in this discussion have been taken from Mr. Grabfelder's habeas petition and memorandum of law in support, the Commonwealth's response, and the state court records.
On March 1, 1983, following a jury trial before the Honorable Eugene Gelfand of the Philadelphia County Court of Common Pleas, Petitioner was convicted of first degree murder and possession of an instrument of crime. "Response To Petition For Writ Of Habeas Corpus" [Docket Entry No. 7] (hereinafter "Commonwealth's Response"): Exhibit "C" (February 28, 1995 Superior Court Opinion) at p. 1.
Petitioner was tried jointly with his brother, George Grabfelder. George Grabfelder was convicted of three counts of aggravated assault and one count of possession of an instrument of crime. Commonwealth's Response: Exhibit "C" (February 28, 1995 Superior Court Opinion) at p. 1 n. 1.
The facts underlying Petitioner's convictions were described by the Superior Court as follows:
"On the evening of April 17, 1982, a group of friends, including Thomas Dolan, David Dugan, Donna Limper, Doris Malak, Thomas O'Toole and Michael Souvigney, met at a neighborhood bar. During the evening, David Dugan had an argument with appellant [Petitioner] and his brother, George Grabfelder. Subsequently, the Grabfelders left the bar, while Dugan, Dolan and the others remained. On April 18, 1982, at approximately 2:15 a.m., Thomas Dolan, David Dugan, Donna Limper and Doris Malak exited the bar together. A short time later, Dolan was shot by appellant about two blocks from the bar, and, as a result thereof, he died on May 5, 1992.
Thomas O'Toole testified that he had left the bar shortly after Dolan. While walking toward Dolan, O'Toole observed Dolan arguing with appellant on the sidewalk. O'Toole continued walking and came within nine feet of appellant. O'Toole observed appellant wielding a baseball bat in one hand and a gun in the other. O'Toole then observed appellant shoot Dolan in the stomach. After appellant shot Dolan, he attacked O'Toole with the bat. At that point, George Grabfelder appeared brandishing a twelve gauge shotgun, which he fired in the air. Thereafter, George Grabfelder chased after O'Toole, David Dugan and Doris Malak and shot each of them. O'Toole's leg had to be amputated as a result of his injury."Id. at pp. 2-3.
On September 5, 1983, after hearing and denying post-verdict motions, Judge Gelfand sentenced Petitioner to life imprisonment, plus a concurrent sentence of two and one half to five years for the weapons offense. Commonwealth's Response: Exhibit "A" (February 21, 1985 Trial Court Opinion) at pp. 4-5.
Petitioner filed a direct appeal to the Pennsylvania Superior Court, raising the following issues:
(1) Whether the verdict was contrary to the evidence, weight of the evidence and the law;
(2) Whether the court erred by not suppressing a pre-trial identification, and also admitting an in-court identification that may have been tainted;
(3) Whether the trial court erred by allowing testimony concerning the appellant's prior possession of pen guns or hand guns;
(4) Whether the trial court erred by not granting a mistrial after it sustained an objection to questions the appellant claims may be construes as indicating the possibility of flight;
(5) Whether the trial court erred by allowing testimony regarding threats made by appellant to a witness; and
(6) Whether the denial of his pre-trial motion for a severance was error."Commonwealth's Response: Exhibit "B" (September 27, 1985 Superior Court Opinion) at pp. 1-2.
The Superior Court, adopting the trial court's analysis, rejected the first five claim on the merits. It determined that the sixth issue had been waived and declined review of this claim. Id.
Petitioner sought discretionary review in the Supreme Court of Pennsylvania. Allocatur was denied on March 17, 1987. Commonwealth's Response: Exhibit "C" (February 28, 1995 Superior Court Opinion) at p. 1.
On October 7, 1992, Petitioner submitted his first pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ["PCRA"], 42 Pa.C.S.A. § 9541 et seq. Counsel was appointed; he filed an amended PCRA petition. Id. at p. 2.
In a November 3, 1994 Order, the PCRA court directed Petitioner to submit, within 60 days, affidavits of two witnesses which he alleged should have been called at his trial. When Petitioner failed to comply with the November 3, 1994 Order, the PCRA Court, by Order dated January 9, 1995, dismissed his PCRA petition without a hearing. Id.
Petitioner filed an appeal from the denial of PCRA relief to the Pennsylvania Superior Court. On appeal, he raised the following issues: (1) trial counsel was ineffective for failing to call as defense witnesses, Donna Limper and Michael Souvigney, whose testimony Petitioner alleges would have raised a reasonable doubt as to his guilt; and (2) the PCRA Court erred in dismissing his claims without an evidentiary hearing, where Petitioner attached, to his PCRA petition, pre-trial statements of these two defense witnesses. Commonwealth's Response: Exhibit "C" (February 28, 1995 Superior Court Opinion) at p. 3.
In a February 28, 1995 Opinion, the Superior Court rejected both claims, and affirmed the PCRA Court. Id. at p. 7.
Petitioner did not seek discretionary review in the Pennsylvania Supreme Court.
On March 27, 1997, Petitioner filed a second PCRA petition. It was denied, without appointment of counsel and without a hearing, on October 1, 1997. Commonwealth's Response: Exhibit "D" (September 1, 1998 Superior Court Opinion) at p. 1.
Petitioner appealed the denial of PCRA relief. On appeal, he asserted the following claims: (1) trial counsel was ineffective for failing to interview or call two witnesses at trial; (2) prior PCRA counsel was ineffective for failing to: acquire affidavits from the two witnesses, as ordered by the PCRA Court; act on Petitioner's request to seek allocatur review in the Pennsylvania Supreme Court; and for abandoning Petitioner without notice or cause. Id. at p. 2.
In a September 1, 1998 Memorandum and Order, the Superior Court agreed that Petitioner's second PCRA petition was untimely and affirmed the PCRA Court. Id. at p. 6.
On July 17, 2001, Petitioner filed his third PCRA petition. It was denied by Order dated December 27, 2001. Commonwealth's Response: Exhibit "E" (December 27, 2001 PCRA Court Opinion).
Petitioner appealed the dismissal of his third PCRA petition to the Superior Court. On appeal, he argued that after the conspiracy charge against him was dismissed, there was insufficient evidence to sustain his conviction for first degree murder, and that all prior counsel were ineffective for failing to raise this issue. Commonwealth's Response: Exhibit "F" (November 7, 2002 Superior Court Opinion) at p. 4.
The Superior Court affirmed the dismissal of Petitioner's third PCRA petition as untimely. Id.
On July 14, 2003, Petitioner signed and dated the instant habeas petition. It was filed in this Court on July 31, 2003. Habeas Petition [Docket Entry No. 1].
For the purposes of this Report and Recommendation, under the prison mailbox rule, I will accept the earliest date, July 14, 2003, as the date of filing.
As grounds for habeas relief, Petitioner presents the following issues:
1. "A violation of the laws of these United States, which in the circumstances of the particular case, so undermined the truth determining process that the adjudication of guilt or innocence violated Petitioner's Sixth and Fourteenth Amendment rights to a jury trial. [. . .]
The murder conviction stemmed from a prosecution for conspiracy at No. 0938. However, Petitioner successfully defended himself against that particular charge when the trial court sustained a defense demurrer to No. 0938.
The record reveals that Petitioner's co-defendant was the shooter, and that the Petitioner was not made culpable for the homicide except through conspiracy. Thus, once the conspiracy charge was dropped, there was nothing to try Petitioner for regarding the homicide."
2. "All Petitioner's counsel were ineffective in failing to object to, or raise and identify, the fact that after the conspiracy charge was dismissed, Petitioner could not be tried for homicide."Memorandum of Law In Support of Habeas Petition at pp. 3-4.
On January 5, 2004, the Respondents answered the habeas petition, arguing that it is time-barred under 28 U.S.C. § 2244(1)(A). In the alternative, the Respondents argue that Petitioner's habeas claim is meritless. Commonwealth's Response at pp. 4-7.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA" or the "Act"], signed into law on April 24, 1996, significantly amended the laws governing habeas corpus petitions.One of the amended provisions, 28 U.S.C. § 2244(d), imposes a one-year statute of limitations on state prisoners who seek federal habeas relief. A habeas petition must be filed within one year from the date on which the petitioner's judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1).
While the date on which the petitioner's conviction becomes final is typically the start date for the limitations period, the statute permits the limitation period to run from four different points in time, depending on which occurs latest. In addition to the date on which the petitioner's conviction becomes final, the start date can also run from: (1) "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"; (2) "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 (3) "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
There is nothing in the pleadings before me to suggest that the start date for the statute of limitations period should be permitted to run from a point later in time than the date on which Mr. Grabfelder's conviction became final.
In applying the habeas statute of limitations to convictions which became final before AEDPA was signed into law, the Third Circuit has held that habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with § 2244(d)(1)'s time limit. See Burns v. Morton, 134 F.3d at 111 (3d Cir. 1998).
In the instant case, Mr. Grabfelder's state conviction became final on June 17, 1987, when the time for seeking certiorari review in the United States Supreme Court (90 days) expired. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) ("Therefore, a state court criminal judgment is `final' (for purposes of collateral attack) at the conclusion of review in the United States Supreme Court or when the time for seeking certiorari review expires."). Because Petitioner's conviction became final before the effective date of AEDPA, he would not have been barred by the statute of limitations from filing a habeas petition on or before April 23, 1997. See Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999) (AEDPA's one year statute of limitations begins to run on April 24, 1996 (the date of AEDPA's enactment) for a petitioner whose conviction became final before that date).
Petitioner's habeas statute of limitations began on April 24, 1996, and expired on April 24, 1997. The instant habeas petition was not filed for over six years beyond the statutory deadline. It is untimely and not subject to habeas review.
A. Statutory Tolling.
The AEDPA amendments include a tolling provision for "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." See 28 U.S.C. § 2244(d)(2).
Petitioner's second PCRA petition, which was filed prior to the expiration of his habeas statute of limitations on March 27, 1997, was a not "properly filed" under state law. This petition did not, therefore, statutorily toll the one year habeas limitations period. See Carey v. Saffold, 122 S.Ct. 2134, 2139 (2002) (an untimely application for collateral review is not "properly filed," and does not statutorily toll the habeas limitations period.) See also Phillips v. Vaughn, No. 02-2109, 2003 WL 202472 at *2 (3d Cir. January 29, 2003) ( "Carey made quite clear that to be deemed `properly filed,' an application for collateral review in state court must satisfy the state's timeliness requirements."), cert. denied, 123 S.Ct. 1761 (2003).
Petitioner's third PCRA petition was also not "properly filed", and it was filed after his habeas deadline had expired. Thus, it did not have any effect on the statute of limitations period.
B. Equitable Tolling.
§ 2244's one-year statute of limitations is subject to equitable tolling. However,
"[E]quitable tolling is proper only 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.' Moreover, to be entitled to equitable tolling, `[t]he petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims.' Mere excusable neglect is not sufficient." Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *4 (3d Cir. March 17, 2003) (citations omitted).
Equitable tolling may be appropriate where: "(1) 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).
Petitioner has not alleged, nor does the record before me support, a finding that the circumstances of this case present the "rare situation" which demands equitable tolling of the habeas statute. Therefore, Petitioner's untimely habeas petition is not subject to federal review.