Opinion
Civil Action No. 04-975.
August 11, 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 the State Correctional Institution ["SCI"] in Pittsburgh, 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
In preparing this Report and Recommendation, I have reviewed the following documents: Mr. Griffin's habeas petition and memorandum in support, the Commonwealth's response, Petitioner's "Motion to Admend [sic] And Traverse Respondent's Answer to Habeas Corpus," and the state court records.
On April 25, 1995, Petitioner entered a plea of not guilty to charges of murder and possession of an instrument of crime before the Honorable John J. Poserina in the Philadelphia Court of Common Pleas. He proceeded to a jury trial and was convicted on May 1, 1995 of first-degree murder and possession of instrument of crime ["pic"]. After hearing and denying postverdict motions, the trial court imposed the mandatory sentence of life imprisonment for first degree murder; no additional penalty was imposed on the pic conviction. State Court Records: Docket Entries at 4-25-95 and 5-1-95; and October 18, 1995 Trial Court Opinion at p. 4.
The facts underlying Petitioner's conviction are set forth by the Superior Court as follows:
In the early morning hours of June 23, 1993, appellant [Petitioner], along with four other individuals, hired a van to facilitate a robbery. Appellant had a.45 calibre handgun with him, and another of the group, Tyree Harold, was carrying a .9mm Tec-9 semiautomatic weapon. The victim, Lavearn Miller, was the driver of the van. He was hired to drive the group to 20th Street and Susquehanna Avenue in the City of Philadelphia where the robbery would take place. This was a service Miller had provided in the past. When they reached 19th Street and Jefferson Avenue, Miller said "I don't want to do it now" and continued driving, now in the direction of the local police station. Appellant, thinking that Miller was going to turn them into the police, reached over from the front passenger seat and shifted the van into park. Miller became frightened and exited the vehicle. He then ran down the 1800 block of Cecil B. Moore Avenue. A shot entered his left arm, which severed a major artery and ultimately caused his death.
After being shot, Miller continued to run towards the police station at 17th Street and Montgomery Avenue. Upon arriving, he collapsed on the sidewalk near the station. Several officers found Miller lying face down and bleeding profusely. One of the officers asked Miller who shot him, and Miller identified the appellant. The police recovered three .9mm shell casings from the street, a beeper that belonged to Tyree Harold, and a .45 calibre clip from the driver's seat in the van.
In a statement given to the police at the time of his arrest, and introduced into evidence by the Commonwealth [footnote omitted], appellant confirmed the details about the robbery trip but maintained that Harold was the one who did the shooting. On June 25, police found Tyree Harold dead in playground, with a.9mm Tec-9 gun on his body. It was later determined that this gun produced the shell casings found on the night Miller was killed. The .45 calibre handgun was found at the house of another of the group who was with Miller and the appellant that night.State Court Records: October 2, 1996 Superior Court Opinion at pp. 1-3.
On June 20, 1995, Petitioner filed a notice of appeal to the Pennsylvania Superior Court. State Court Records: Docket Entries at 6-20-95.
On appeal Petitioner raised six issues:
1. Whether the trial court erred in admitting the statement of the dying victim that identified the appellant [Petitioner] as the killer;
2. Whether the court erred in admitting evidence that the appellant and the victim were prepared to commit a robbery shortly before the victim was killed;
3. Whether the court erred in allowing testimony about the death of Tyree Harold and the gun that was found on his body;
4. Whether the court should have held an evidentiary hearing regarding appellant's claim of jury misconduct;
5. Whether the court erred in failing to grant his motion for arrest of judgment on the ground that the evidence was insufficient to prove murder; and
6. Whether the court erred in failing to grant a new trial on the ground that the jury verdict was contrary to the weight of the evidence.State Court Records: October 2, 1996 Superior Court Opinion at p. 3.
The Superior Court affirmed the trial court decision, on the merits, on October 2, 1996.
Petitioner did not seek allocatur in the Pennsylvania Supreme Court. State Court Records: August 7, 2001, Superior Court Opinion at p. 2.
On November 8, 1999, Petitioner filed a counseled petition for relief under the Post Conviction Hearing Act ["PCRA"], 42 Pa.C.S.A. § 9541. In this petition, Mr. Griffin sought relief based on after-discovered evidence in the form of an undated affidavit of a fellow inmate named Darryl West. Darryl West alleged that he heard Vern make a dying declaration identifying Tyree Harold as his killer. The motion for collateral relief was dismissed without a hearing on September 12, 2000, on the ground that it was untimely. State Court Records: August 7, 2001 Superior Court Opinion at pp. 2-3.
Petitioner, still being represented by counsel, filed an appeal to the Pennsylvania Superior Court. On appeal, Petitioner asserted that the PCRA court erred when it dismissed his petition as untimely filed. He argued that after-discovered evidence falls under one of the enumerated exceptions to the timing requirements of the PCRA. The Pennsylvania Superior Court affirmed in a memorandum opinion on August 7, 2001. Id. at p. 5.
Petitioner did not seek allocatur review of the denial of PCRA relief in the Pennsylvania Supreme Court. Instead, Mr. Griffin, then acting pro se, filed a second PCRA petition on September 12, 2001. In his second PCRA petition, Mr. Griffin alleged:
Trial counsel was ineffective for the following reasons, 1. He failed to conduct an independent investigation into the cause of death 2. During trial he failed to object to the cause of death when he had information to the contrary 3. He failed to call two witness [sic] that was willing to testify that I did not commit the murder, the witnesses are Edward Jefferson and Kenneth Johnson 4. He failed to produce a dying declaration that would have exonerated me 5. He failed to object and move for a mistrial as a result of the prosecutor's personal remarks during closing arguments 6. He suppressed favorable evidence that could have been used as mitigated evidence and to show Defendants state of mind. Appellate counsel was ineffective for not raising the above issues on appeal. (layer claim)State Court Records: PCRA Petition marked "Received Sept 12, 2001" [identified in bottom right corner as "D-17"]
Petitioner's second PCRA petition was dismissed as untimely by Order dated April 15, 2002. State Court Records: April 15, 2002 PCRA Court Order [identified in bottom right corner as "D-19"].
Petitioner did not appeal the dismissal of his second PCRA petition, instead on May 22, 2002, he filed a third PCRA petition. Once again, he claimed after-discovered evidence, this time in the form of a statement of inmate Robert Wilson, who alleges to have heard the decedent make a dying declaration identifying Tyree Harold as the killer. State Court Records: PCRA Petition marked "Received May 22, 2002" [identified in bottom right corner as "D-20"]. On June 10, 2003, this third PCRA petition was dismissed as untimely. Id.: Docket Entries at 6-10-03.
On June 27, 2003, Petitioner appealed the denial of his third PCRA petition. State Court Records: Notice of Appeal marked "Filed June 27, 2003" [identified in bottom right corner as "D-25"]. On August 28, 2003, Petitioner's appeal was dismissed for failure to file a timely docketing statement as required by Pa.R.A.P. 3517. Id.: Docket Entries at August 28, 2003.
On February 17, 2004, Petitioner signed and dated the instant § 2254 habeas. It was filed in this Court on March 5, 2004. Petition for Habeas Corpus [Docket Entry No. 1].
For the purposes of this Report and Recommendation, under the prison mailbox rule, I will accept the earlier date of February 17, 2004, as the date of filing. See Burns v. Morton, 134 F.2d 109, 113 (3d Cir. 1998).
As the grounds for habeas relief, the Petitioner has raised the following issues:
1. Conviction obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to the defendant. The prosecution told the Jury that the victim died from a gun shot wound to the left arm, and was in possession of the victim's medical records which would have showed that the victim received a blood transfusion and had his gun wound repaired.
2. Conviction obtained by the use of perjured testimony by the prosecution's witness. The prosecution used the perjured testimony of a Medical examiner to state that the victim died from loss of blood due to a gun shot wound, when the prosecution was in possession of evidence (post-mortem) report stating "the gun shot is secured sutured and intact" thus making it impossible for the victim to bleed.
3. Ineffective Assistance of Counsel. Trial Counsel was Ineffective for failing to object to the prosecution's theory that the victim died as a result of blood loss from a gun-shot wound. Counsel was in possession of the "Post-Mortem report" but failed to present this evidence to the jury which would have undermined the prosecution's case and would have raised sufficient doubt in the minds of the jury, which would have led to a not guilty verdict for the defendant. During jury deliberation, one juror was in doubt when he asked the question "how could a person die from the shot in the arm?" But trial counsel failed to turn this doubt into a not-guilty verdict by not presenting the incontrovertible evidence which was in his possession.
Furthermore, trial counsel was ineffective for not obtaining or failing to utilize the victims Hospital records which incontrovertibly establishes the defendant's actually innocence, and that the victim died from a damaged Iliac Artery, caused by the Doctor's in the hospital, and not from a gun-shot wound to the left arm as the prosecution contended.
Trial Counsel had at his fingertips, the victim's medical records, information that could have undermined the prosecution's case, yet chose not to develop this evidence and use it at trial, but for counsel's unprofessional errors, the result of the proceeding would have been different. By not utilizing the exculpatorial evidence, trial counsel's deficient performance led to the conviction of one who is actually innocent.Petition for Habeas Corpus at pp. 9-11.
In explaining why he did not appeal from adverse rulings in the state court, Petitioner asserts, without explanation: "I am untrained in law, and at times my mental illness, schizophrenia, interferes with my perception of reality." Petition for Habeas Corpus at p. 8.
In his memorandum of law in support of his habeas petition, Griffin argues that he is actually innocent under Schlup v. Delo, 513 U.S. 298, 327 (1995), and that it would be a manifest miscarriage of justice for the court not to hear his procedurally barred claims. Petitioner contends that had the medical records of the decedent been presented, they would have shown the jurors that the decedent's gun-shot wound was repaired and that he died from an unrelated injury. Memorandum of Law in Support of Habeas Petition at pp. 9-10.
The Commonwealth has filed an answer to Mr. Griffin's habeas petition, arguing that the current petition is untimely. The Commonwealth asserts that Petitioner's habeas filing deadline was October 31, 1997, and that Petitioner executed the instant habeas petition on February 17, 2004, which is over five years late. Commonwealth's "Response to Petition For Writ of Habeas Corpus" [Docket Entry No. 6, hereinafter "Commonwealth's Answer"] at p. 5.
The Commonwealth argues that the statute of limitations was never tolled, because Petitioner's first PCRA petition was not "properly filed" under the federal habeas requirements, and was filed well after Mr. Griffin's statutory period expired in 1997. Id. at p. 6.
In its answer, the Commonwealth does not refer to Petitioner's second or third PCRA petitions.
The Commonwealth also asserts that Petitioner's evidence may not be considered "new evidence" under the Schlup standard, and that this evidence, in any event, does not establish actual innocence. Commonwealth's Answer at pp. 10-12.
On May 28, 2004, Petitioner filed a Motion to Amend and Traverse to the Commonwealth's answer. In this pleading, he argues that his conviction was procured by perjured testimony and that, therefore, he should not be time-barred from seeking habeas relief. Petitioner alleges that Commonwealth presented evidence at trial that the decedent's death was a direct result of blood loss from a gun shot wound to the arm. Petitioner's "Motion to Admend [sic] and Traverse Respondents Answer to Habeas Corpus" [Docket Entry No. 7, hereinafter "Motion to Amend"]. However, according to Petitioner, the medical records show a different cause of death, cardiac arrest, after the decedent "lost a significant amount of blood to an unrelated iliac-groin wound hours before his death." Memorandum of Law in Support of Habeas Petition at p. 10.
Petitioner asserts:
that the decedent did not, in any way, die from the gun shot wound. Thus the Commonwealth lack jurisdiction over subject matter, whereas petitioner should not have been tried for murder at all.Motion to Amend at p. 4.
Mr. Griffin requests an evidentiary hearing in order to verify the authenticity of the medical records and to decipher any difficult medical language. He argues that because he alleges a claim of actual innocence, he deserves a hearing to show why the procedurally defaulted claims should be heard. Id. at p. 5.
Petitioner also seeks to add an issue to his habeas petition. He asserts that he is innocent of first degree murder. He claims that because the Commonwealth now argues that the decedent did not die as a direct result from the gun wound, but rather as a result from complications related to the gun shot wound, this "mitigates the degree of First Degree to Voluntary Manslaughter or third degree." According to Petitioner the Commonwealth failed to present any evidence that he was "lying in wait" or acted with malice, which are all essential elements of first degree murder. Petitioner claims that:
The Commonwealth testified at trial the petitioner thought Vern would go to the police and asked him to stop, but he refused. [citation to Commonwealth's Answer omitted]. Clearly, if this is true, this would not be first degree murder, but rather third degree, cause perpetrator would have been acting in the heat of passion of the threatening prospect of being sent to jail.Motion to Amend at pp. 6-7.
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. Griffin's conviction became final.
In the instant case, Mr. Griffin's state conviction became final on November 2, 1996. This is the last date on which he could have filed a timely request for discretionary review in the Pennsylvania Supreme Court. See Pa. R.A.P. 903(a) (which provides a thirty day appeal period after entry of the order from which the appeal is taken).
Mr. Griffin's habeas statute of limitations began on November 2, 1996 and expired on November 2, 1997. The instant habeas petition was filed on February 17, 2004, which is over six years beyond the statutory deadline. Therefore, 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 had no state collateral petitions pending prior to November 2, 1997. His three PCRA petitions, filed after the expiration of his habeas statute of limitations, do not have any affect on his habeas limitations period. In addition, all three were found to have been untimely under state law, and, therefore, cannot be considered "properly filed" under § 2244(d)(2).
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 clams.' Mere excusable neglect is not sufficient."Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *4 (3d Cir. March 7, 2003) (citations omitted), cert. denied, 539 U.S. (2003).
Equitable tolling may be appropriate where: "(1) the defendant has activity 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).
In the final analysis, federal review on an equitable basis of an untimely habeas petition is limited to the "rare situation where equitable tolling is demanded by sound legal principles as well as the interest of justice." Id.
A showing of mental incompetence is not a per se basis for equitable tolling. However, equitable tolling may be available where the habeas petitioner establishes that his or her mental incompetence "somehow [. . .] affected the petitioner's ability to file a timely habeas petition." Nara v. Franks, 264 F.3d 310 (3d Cir. 2001), overruled in part on other grounds, Carey v. Saffold, 536 U.S. 214 (2002). See United States v. Harris, 268 F.Supp.2d 500, 506 (E.D.Pa. 2003).
While the Nara Court focused on "the irremediable inability to access information and make use of it," the Court did not set forth specific criteria for determining whether equitable tolling is justified on the basis of mental deficiency affecting the petitioner's ability to file a timely habeas petition. Graham v. Kyler, CA No. 01-1997, 2002 WL 32149019 at *3 (E.D.Pa. October 31, 2002).
In post- Nara decisions, Courts in this Circuit have looked at the totality of the petitioner's circumstances to determine whether the petitioner's alleged mental condition has been shown to have prevented petitioner, during the habeas statutory period, from filing a timely petition. See, e.g., Harris, 268 F.Supp.2d 500 (E.D.Pa. 2003), Graham, 2002 WL 32149019 at *3 (E.D.Pa. October 31, 2002); and Williams v. Sobina, CA No. 03-4692, 2004 WL 1396744 (E.D.Pa. June 21, 2004). Factors considered by courts include: whether the petitioner has been adjudicated incompetent, and if so, when in relation to the habeas statutory period; whether petitioner has been institutionalized for his/her mental impairment; whether petitioner has handled or assisted in other legal matters which required action during the limitations period; and whether petitioner's allegations of impairment are supported by extrinsic evidence such as evaluations and/or medication. Graham, 2002 WL 32149019 at *3-11 (E.D.Pa. October 31, 2002).
Petitioner's passing reference in his habeas petition to schizophrenia which interfered at some unspecified point with his perception of reality does not make a threshold showing of mental incompetence sufficient to toll the habeas statute of limitations. There is no evidence that Petitioner's mental condition prevented him from filing a timely habeas petition.
C. Actual Innocence.
In his habeas petition, Mr. Griffin asserts that he is actually innocent, arguing that if the medical records of the decedent are accepted as new evidence they would show beyond a reasonable doubt that he is not guilty.
If the medical records of the decedent had been presented, whereon they would have factually shown that the decedents gun-shot wound was repaired, he was transfused, that he lost a significant amount of blood to an unrelated iliac-groin wound hours before his death, and that the victim's immediate cause of death was cardiac arrest, the defendant more than likely would have been acquitted.Motion to Amend at pp. 9-10.
The question of whether there is an actual innocence exception to the AEDPA statute of limitations has not yet been decided by either the United States Supreme Court or the Third Circuit. See, e.g., Devine v. DiGuglielmo, CA No. 04-583, 2004 WL 945156 at *3 (E.D. Pa. April 30, 2004) ("Neither the Supreme Court of the United States, nor the Third Circuit Court of Appeals, has yet considered whether there is an `actual innocence' exception to the AEDPA statute of limitations.")
Assuming arguendo that there is such an exception to the AEDPA statute of limitations, in order to establish actual innocence,
"a habeas petitioner must `persuade the district court that, in light of the new evidence, no juror, acting reasonably would have voted to find him guilty beyond a reasonable doubt.' Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002) ( quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Actual innocence means `factual innocence, not mere legal sufficiency.' Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The Supreme Court has required a petitioner `to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.' Schlup, 513 U.S. at 324, 115 S.Ct. 851 (emphasis added); see also Cristin, 281 F.3d at 420. `Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.' Schlup, 513 U.S. at 324, 115 S.Ct. 851; see also Cristin, 281 F.3d at 420. `Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.' Schlup, 513 U.S. at 324, 115 S.Ct. 851; see also Wertz v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (nothing that the actual innocence exception `will apply only in extraordinary cases')."Sweger v. Chesney, 294 F.3d 506, 522-523 (3d Cir. 2002), cert. denied, 538 U.S. 1002 (2003).
Some of the evidence presented by Petitioner is not "new." Dr. Gregory McDonald's autopsy report, Exhibit "4," was introduced at trial. See N.T. 4/26/95 at p. 46. Assuming arguendo that Petitioner's remaining evidence is both new and reliable as required by Schlup, it does not establish actual innocence.
At trial, Dr. McDonald identified the cause of death as a gunshot wound to the upper left arm. The bullet severed an artery causing massive blood loss, leading to complications and death three days later. See N.T. 4/26/95 at pp. 47-49.
The medical records submitted by Petitioner indicate that when Vern arrived at the Emergency Room of Temple University Hospital, he was bleeding from a gunshot wound in his left upper arm which had severed his left brachial artery. He was in "profound hemorrhagic shock," with "a barely palpable femoral pulse." When Vern's femoral pulse dissipated, an emergency room thoracotomy was performed, and Atropine and open cardiopulmonary massage with simultaneous administration of volume were administered. His pulse immediately returned and his vital signs stabilized. The left subclavian artery was clamped and Vern was taken for emergency surgery to repair the brachial artery injury and close his chest. See Exhibit "1" at pp 1-2.
A short segment of Vern's saphenous veins was removed from his left thigh and was grafted on to the brachial artery. Diffuse bleeding in the area of the gunshot wound and the chest, due to coagulopathy, were noted. At the end of the emergency surgery, Vern was "stable hemodynamically," and was sent to the surgical intensive care unit for "aggressive treatment of his coagulopathy, in anticipation of possible re-exploration several hours later." Id. at pp. 2-4.
A defect in the blood clotting mechanism. Source of definition: DictionaryBarn: A medical dictionary, available at www.dictionarybarn.com.
The next day, on June 24, 1993, Vern was brought back to the operating room for evacuation of a hematoma in his left chest. His oxygenation improved, and he was returned to the Intensive Care Unit. Approximately twelve hours later, Vern became hypotensive and tachycardic. Additional exploratory surgery was performed. "Copious amounts of bloody fluid as well as thick clots" were discovered in his abdomen, and were removed. Vascular surgery to repair a small opening in the right external iliac artery was performed. Once all "active bleeders" were stopped, the abdominal cavity and groin were closed, and Vern's condition was stable. See Exhibit "2" at pp. 2-4.
The following day, June 25, 1993, Vern's heart stopped and he was pronounced dead at 11:50 a.m. See Exhibit 3.
Dr. McDonald's autopsy, which was introduced at trial, lists the cause of death as gunshot wound of left arm with multiple surgical interventions. See Exhibit "4."
Thus, the medical reports support Dr. McDonald's testimony that the cause of death was due to complications from the gunshot wound. The records do not demonstrate that Mr. Griffin is actually innocent.
Based upon all of the evidence, including the purported "new evidence", I cannot conclude that no rational juror could have voted to convict Petitioner of first degree murder. Petitioner has not met his burden of establishing actual innocence under Schlup.
Because Petitioner has not set forth a facially adequate claim of actual innocence, he is not entitled to an evidentiary hearing. See Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir.) (bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing), cert. denied, 484 U.S. 946 (1987).
RECOMMENDATION
For the reasons stated above, it is recommended that the Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, be DENIED AND DISMISSED AS TIME-BARRED. It is further recommended a finding be made that there is no probable cause to issue a certificate of appealability.