Opinion
CIVIL ACTION NO. 10-4570.
July 15, 2011
ORDER
AND NOW, this 14th day of July, 2011, upon consideration of the Petition for Writ of Habeas Corpus filed by petitioner, Paul Q. Griffin, and the related submissions of the parties, the record in this case, the Report and Recommendation ("R R") of United States Magistrate Judge Lynne A. Sitarski dated May 25, 2011, and Petitioner's Objections to R R, IT IS ORDERED as follows:
1. The R R of United States Magistrate Judge Lynne A. Sitarski dated May 25, 2011, is APPROVED and ADOPTED;
2. Petitioner's Objections to R R are OVERRULED;
3. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Paul Q. Griffin, is DISMISSED as UNTIMELY FILED; and,
4. A certificate of appealability will not issue because reasonable jurists would not debate whether the petition states a valid claim of the denial of a constitutional right or this Court's procedural rulings with respect to petitioner's claims.See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The decision of the Court is based on the following:
1. This case arises out of petitioner's conviction for third-degree murder and possession of a instrument of crime on April 29, 2002, in state court. On July 25, 2002, defendant was sentence to 19 to 38 years imprisonment for the third-degree murder conviction, and a consecutive one to five years of imprisonment for the possession of an instrument of crime conviction.
2. The procedural history of the case is detailed in the R R of the Magistrate Judge and need not be repeated in this Order.
3. On September 6, 2010, petitioner filed the instant habeas petition, asserting the following claims:
a. Ineffective assistance of counsel for failing to properly question the Commonwealth's witnesses about making deals for false statements;
b. Ineffective assistance of counsel for not getting evidence from the gun if the victim and which was found next to his body; and,
c. Ineffective of counsel for not arguing that the sentence was excessive.
4. On May 25, 2011, the Magistrate Judge filed a R R in which she concluded that the habeas petition was time-barred under 28 U.S.C. § 2244(d)(1)(a)-(d). Accordingly, the substantive grounds for relief asserted in the Petition were not addressed.
5. On June 9, 2011, petitioner filed Objections to the R R.
6. The only issue addressed in the Objections is equitable tolling. The Court approves and adopts the R R of the Magistrate Judge which includes a discussion of some aspects of petitioner's equitable tolling argument raised in the Objections. In this Order, the Court will briefly summarize the equitable tolling issues addressed and resolved properly by the Magistrate Judge, and address the new arguments raised by petitioner in the Objections.
7. The Supreme Court has stated that the party invoking the doctrine of equitable tolling bears the burden of establishing two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2562 (2010). See also Miller v. Department of Corrections, 145 F.3d 616, 618 (3d Cir. 1998).
8. In the Objections, petitioner argues Petitioner argues that he is entitled to equitable tolling because appointed counsel abandoned him after the Supreme Court of Pennsylvania denied allocatur for his second PCRA petition without notifying him that he did not intend: (a) to seek certiorari from the Supreme Court of the United States; or (2) to file a habeas corpus petition. In the Objections, petitioner also says he is entitled to equitable tolling because appointed counsel, a state actor, and the Supreme Court of Pennsylvania failed to advise him of the deadlines for filing a petition for writ of certiorari and a habeas corpus petition.
9. Regarding the Supreme Court of Pennsylvania's alleged failure to notify petitioner of filing deadlines, petitioner raised this issue for the first time in his Objections. Pursuant to Local Rule of Civil Procedure 72.1(IV)(c), this issue is waived unless the interest of justice requires that it be considered. See Volz v. Rozum, No. 09-0885, 2010 WL 3069589, at *7 (E.D. Pa. Aug. 5, 2010). In this case, the interest of justice does not require consideration of petitioner's argument that he is entitled to equitable tolling because the Supreme Court did not instruct him on the statutory deadlines for filing a petition for writ of certiorari and a habaes corpus petition. Cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) (stating that a federal district judge has "no obligation to act as counsel or paralegal to pro se litigants").
10. Petitioner also argues that his PCRA counsel did not inform him of his right to seek certiorari or file a federal habeas corpus petition. There is no allegation in the habeas corpus petition or the Objections that petitioner's attorney stated that he filed a petition for writ certiorari or a habeas corpus petition, or intended to file such documents. Accordingly, in the absence of an affirmative misrepresentation, the conduct of petitioner's attorney does not constitute an extraordinary circumstance which would warrant equitable tolling: McFarlane v. Gillis, No. 01-1657, 2011 WL 129212, at *15 (E.D. Pa. Jan. 14, 2011) (Diamond, J.). Moreover, equitable tolling has been rejected even in situations where an attorney incorrectly advised a petitioner of the date for filing a petition for writ of habeas corpus. Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002).
11. With respect to counsel's failure to petition for writ of certiorari, petitioner is not entitled to relief because, even if relief had been sought in the Supreme Court of the United States, the statute of limitations for filing a habeas corpus petition would not have been tolled. See Stokes v. Dist. Attorney of Phila., 247 F.3d 539, 542 (3d Cir. 2001).
12. Petitioner also appears to be arguing in his Objections that equitable tolling should apply because his PCRA counsel was court-appointed and is, therefore, a state actor. This argument fails because merely appointing an attorney does not constitute state action sufficient to warrant equitable tolling. See Lawrence v. Florida, 549 U.S. 327, 337 (2007).
13. The Court further finds that petitioner failed to meet his burden of proving that he exercised reasonable diligence in filing his petition for writ of habeas corpus. In so ruling, the Court's notes that, when the Supreme Court of Pennsylvania denied allocatur on September 9, 2009, petitioner had 187 days remaining on the AEDPA's statute of limitations to file a timely federal habeas petition. Petitioner waited nearly one year after this denial (and nearly six months after the statutory period expired) to file the petition. To explain this delay, petitioner claims, without providing any evidence, that he waited to hear from his attorney and the disciplinary board to which he had submitted a charge against his PCRA attorney. That does not satisfactorily excuse the late filing.