Opinion
Civil Action No. 05-3706.
February 13, 2006
MEMORANDUM AND ORDER
Morad Hazmine, an inmate at the State Correctional Institution in Albion, Pennsylvania, petitions this Court for a writ of habeas corpus. In his objections to a Magistrate Judge's Report and Recommendation, Hazmine concedes he filed his petition almost three years too late, but requests this Court equitably toll the limitations period. After conducting a de novo review pursuant to 28 U.S.C. § 636(b)(1), I will dismiss Hazmine's petition.
BACKGROUND
On June 5, 2001, a judge in the Court of Common Pleas for Philadelphia County, sitting without a jury, found Hazmine guilty of aggravated indecent sexual assault, sexual assault, theft by unlawful taking, receiving stolen property, possession of an instrument of crime, and terroristic threats. The court sentenced Hazime on September 5, 2001 to a prison term of three to six years, and Hazmine did not appeal. On March 11, 2003, Hazmine filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA). Appointed counsel for Hazmine submitted a "no-merit" letter to the trial court, which dismissed Hazmine's petition as untimely. A panel of the Superior Court of Pennsylvania affirmed the dismissal, Commonwealth v. Morad, 864 A.2d 581 (Pa.Super. 2004) (Table), and, on April 19, 2005, the Supreme Court of Pennsylvania denied Hazmine's request for allowance of appeal, Commonwealth v. Morad, 872 A.2d 1198 (Pa. 2005) (Table).
42 Pa. C.S. § 9541, et seq.
Hazmine filed this petition for a writ of habeas corpus on July 18, 2005, contending his trial attorney did not: (1) conduct an independent review of the record; (2) file a direct appeal when requested to do so; (3) advise Hazmine of the advantages and disadvantages of appealing; or (4) consult with him about filing a direct appeal. On August 11, 2005, Hazmine filed an amended petition wherein he expanded on the original grounds for habeas relief and argued his "very poor understanding of English" does not make him accountable for the untimeliness with which he pursued his post-conviction remedies. The Magistrate Judge to whom this matter was referred for a Report and Recommendation concluded Hazmine's habeas petition was not timely filed and recommends it be dismissed. Hazmine objects, claiming his inability to read, write, or understand English, combined with the absence of an interpreter at sentencing, denied him the opportunity to understand his appeal rights and justifies the equitable tolling of the limitations period.
DISCUSSION
A petition for habeas corpus relief must be filed within one year from "the date on which the [petitioner's] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d). Hazmine's "judgment became final" on October 5, 2001, thirty days after he was sentenced, and, by not appealing, the period for filing a timely habeas petition under the Antiterrorism and Effective Death Penalty Act (AEDPA) ended on October 5, 2002. The "AEDPA's one-year filing requirement is a statute of limitations, not a jurisdictional rule, and thus a habeas petition should not be dismissed as untimely if the petitioner can establish an equitable basis for tolling the limitations period." Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citing Miller v. N.J. State Dep't of Corr., 145 F.3d 616 (3d Cir. 1998)). Here, Hazmine concedes strict application of the AEDPA's one-year statute of limitations renders his habeas petition untimely, but argues a basis exists for equitable tolling.
If Hazmine had filed a timely PCRA petition, then the AEDPA's one-year limitation could have been statutorily tolled pursuant to 28 U.S.C. § 2244(d)(2), but the Pennsylvania courts consistently held Hazmine's PCRA petition was untimely. The Third Circuit holds an untimely PCRA petition is not properly filed for habeas purposes. Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir. 2001).
Equitable tolling is warranted when "the petitioner has in some extraordinary way been prevented from asserting his or her rights . . . [and] has exercised reasonable diligence in investigating and bringing the claims." Miller, 145 F.3d at 618. Hazmine contends, in his objections to the Report and Recommendation, the one-year statute of limitations should be equitably tolled because his inability to understand English and the absence of an interpreter at sentencing left him completely unaware he had a right to appeal. Such extraordinary circumstances, Hazmine argues, excuse the untimeliness with which he sought collateral relief at both the state and federal levels. I conclude, though, Hazmine's argument is without merit because his own statements, which he made in his PCRA petition, to PCRA court-appointed counsel, and in his habeas petition, not only reveal he was undeniably aware of his right to appeal, but also contradict his current argument.
Specifically, Hazmine's PCRA petition asserted he was entitled to post-conviction relief for the following reason:
Ineffective assistance of counsel for the failure to file a requested direct appeal to the Superior Court of Pennsylvania. The petitioner advised his attorney to file a direct appeal of sentence on September 5, 2001.
(Pet. Post Conviction Review 2.) Two pages later, Hazmine avers "he was under the impression at all times that his attorney would do as he requested and file the necessary post sentence motions and notice of appeal." (Pet. PCR 4.) Hazmine also communicated the same information to PCRA appointed counsel because she wrote, in the section of the "no-merit" letter titled "Issues Raised by the Petitioner and Discussion," that "Mr. Morad [Hazmine] claims that his counsel was ineffective because the petitioner asked him to file a direct appeal on September 5, 2001 and his counsel failed to do so." Letter from Elayne C. Bryn to The Honorable M. Teresa Sarmina (Aug. 22, 2003). In his petition for writ of habeas corpus, Hazmine asserted (as a ground for relief) his attorney failed to file a requested direct appeal to the Superior Court. (Pet. Writ of Habeas Corpus 6.) Hazmine made this averment twice in the application — on the front and back sides of page six. Moreover, Hazmine acknowledged in his amended habeas petition one of the grounds for seeking collateral relief at the state level was counsel's "failure to file a requested direct appeal to the Superior Court of Pennsylvania." (Am. Pet. Writ of Habeas Corpus 2-3.)
Given the frequency with which Hazmine complained his attorney failed to file an appeal when requested, I conclude Hazmine was cognizant of his right to directly appeal his sentence, thereby rendering the argument raised in his objections dubious, at best. Simply put, Hazmine's limited understanding of English is not an extraordinary circumstance as it pertains to his attorney's alleged failure to file an appeal. Even assuming Hazmine's claims concerning the ineffectiveness of counsel are true, "attorney error is not a sufficient basis for equitable tolling of the AEDPA's one-year period of limitation" in a non-capital case. Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004). Based on the lack of extraordinary circumstances and the conjunctive nature of the test for equitable tolling, I will dismiss Hazmine's petition for writ of habeas corpus and recommend a certificate of appealability not issue.
The application for habeas corpus relief cautions the petitioner that "[a]ny false statement of a material fact in your petition, . . . or in any other motion you file in this case may serve as the basis for prosecution and conviction for perjury."
Hazmine also did not exercise the requisite diligence in pursuing his rights because he waited approximately three years to file a petition for habeas corpus — a period too long to conclude he exercised reasonable diligence in investigating and bringing his claims. LaCava v. Kyler, 398 F.3d 271, 276-77 (3d Cir. 2005).
An appropriate order follows.
ORDER
AND NOW, this 13th day of February, 2006, the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter is APPROVED and ADOPTED, the Petition for Writ of Habeas Corpus (Document 1) is DISMISSED, and Petitioner's request for a hearing is DENIED. There is no basis for the issuance of a certificate of appealability.