Opinion
Civil Action No. 03-4906.
April 29, 2004
REPORT AND RECOMMENDATION
Presently before this court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Lawrence Hill ("Petitioner") currently is incarcerated at the State Correctional Institution at Graterford, Pennsylvania. Petitioner seeks habeas relief based on ineffective assistance of counsel and trial court errors. See Petition for Writ of Habeas Corpus ("Pet.") at 9-10. The Honorable James Knoll Gardner referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasonsthat follow, Petitioner's time-barred claims should be dismissed, without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts in this background and procedural history were obtained from Petitioner's Petition for Writ of Habeas Corpus, the Commonwealth's Response to Petition for Writ of Habeas Corpus inclusive of all exhibits, and the record of the Court.
In January 31, 1974, a jury convicted Petitioner of first-degree murder, assault and battery, aggravated robbery, burglary with intent to rob, and carrying a firearm on a public street. See Commonwealth v. Hill, No. 1360 at 1 (Pa.Super.Ct. Dec. 17, 2002). On February 1, 1974, Petitioner filed a motion for new trial and in arrest of judgment. See Respondent's Brief ("Resp.") at 1-2. After full hearing en banc, the Honorable Lawrence Prattis, Jr., the Honorable Juanita Kidd Stout, and the Honorable Edward Bradley, Petitioner's motion was denied on November 25, 1974. See id.; see also Hill, No. 1360 at 1. In December of that year, Judge Prattis, sentenced Petitioner to a term of life imprisonment for the murder conviction, and concurrent terms of five to ten years' imprisonment on the aggravated robbery conviction and two-and-one half to five years on the charge of assault and battery to run consecutive to the life sentence. See Hill, No. 1360 at 1; see also Pet. at 5.
Petitioner appealed his first-degree murder conviction directly to the Pennsylvania Supreme Court (as was appropriate in all first-degree murder cases at the time) and the convictions on the lesser charges to the Pennsylvania Superior Court. See Hill, No. 1360 at 1. These appeals were consolidated and, on March 30, 1976, the Pennsylvania Supreme Court remanded the entire matter for a second suppression hearing. See Commonwealth v. Hill, 353 A.2d 436 (Pa. 1976). Suppression was denied and Petitioner, again, appealed. See Hill, No. 1360 at 2. This time the Pennsylvania Superior Court affirmed the judgment of sentence and the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal. See Commonwelath v. Hill, 406 A.2d 796 (Pa.Super. 1979) allocatur denied, November 7, 1979, No. 4446 Alloc.Dkt. 1979.
On June 2, 1981, Petitioner filed his first petition for collateral relief, pursuant to the Pennsylvania Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S.A. § 9541, et seq. (repealed and replaced by the Post Conviction Relief Act, ("PCRA") 42 Pa.C.S.A. § 9541, et seq.). See Hill, No 1360 at 2. His petition was denied by the trial court, and on December 10, 1985; the Superior Court dismissed the appeal, without prejudice, for failure to file a brief. See Commonwealth v. Hill, No. 2401 ( Pa. Super. 1985). Petitioner's second PCRA petition, seeking reinstatement of his appellate rights, was granted on March 18, 1987. See Hill, No. 1360 at 2. Accordingly, on March 23, 1987, Petitioner filed his nunc pro tunc notice of appeal to the Superior Court, but that court affirmed the order denying Petitioner's first PCHA petition. See Commonwealth v. Hill, 541 A.2d 28 (Pa.Super. 1988).
Thirteen years later, on July 16, 2001, Petitioner filed a third post-conviction petition that was dismissed as untimely on February 19, 2002. See Pet. at 7; see also Hill, No. 1360 at 2. On December 17, 2002, the Pennsylvania Superior Court affirmed the dismissal of the untimely PCRA petition. See Hill, No. 1360 at 1-8. Finally, Petitioner's appeal to the Pennsylvania Supreme Court was denied on July 15, 2003. See Commonwealth v. Lawrence Hill, 829 A.2d 310 (Pa. 2003).
Petitioner filed the instant petition, on August 28, 2003, alleging inter alia that:
1) [Petitioner] was denied his Constitutional right of due process as the result of the PCRA Court dismissing [his] PCRA motion as untimely after holding ex parte hearings with the Assistant District Attorney.
2) [Petitioner's] due process rights were violated as the result of the trial court believing [ sic] the prosecution of its burden of proof on the issue of reasonable doubt as it related to the elements of crime.
3) [Petitioner] was denied due process and a fair trial as the result of trial counsel's failure to preserve the issue of the jury charge being improper, thus, relieving the prosecution of its burden of proof on the issue of reasonable doubt as it related to the elements of the crime.
4) Trial counsel was ineffective for [his] failure to object to improper statements made by the prosecutor in his summation to the jury.
5) [Petitioner's] inculpatory statement [given to the] Police and used at trial was the product of unnecessary delay between arrest and arraignment.
Pet. at 9-10. Following a careful review of the record, this court concludes that Petitioner's claims are all time-barred and, therefore, unreviewable.
II. DISCUSSION
A. AEDPA Statute of LimitationsThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, generally requires that all habeas corpus petitions be filed within one year of the date on which a state court judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). A state judgment of conviction is final once direct review is concluded or the time for seeking such review has expired. See id. Any time which elapses between the issuance of a final judgment and institution of a petition for state collateral review is subtracted from the allotted year. See Swartz v. Meyers, 204 F.3d 417, 419 n. 2 (3d Cir. 2000).
While the date on which the petitioner's conviction becomes final is typically the "run" date for the limitations period, see 28 U.S.C. § 2244(d)(1), the statute also permits the limitation period to run from the latest of several events:
(d)(1)(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 State 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)(B)-(D).
Petitioner's conviction became final on or about February 5, 1980, when his deadline to file for U.S. Supreme Court review expired. However, since Petitioner's conviction became final before the effective date of AEDPA, he was granted a one-year grace period, or until April 24, 1997, to seek federal habeas relief. See Burns v. Morton, 134 F.3d 109 (3d Cir. 1998). He did not file a petition for Writ of habeas corpus before the AEDPA deadline expired.
Nevertheless, in appropriate instances, statutory or equitable tolling provisions could extend the initial AEDPA deadline. See Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001). For example, if, prior to expiration of the full AEDPA year, petitioner sought collateral relief, "[t]he time during which [that] properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim [was] pending [would] not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). A "properly filed application" for collateral review is "one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). See also Artuz v. Bennett, 531 U.S. 4, 9 (2000) (citing Lovasz and holding an application for collateral review is "properly filed" if its "delivery and acceptance are in compliance with the applicable laws and rules governing filings," i.e. the form of the document). The Third Circuit specifically has held that a state collateral petition that is found to be untimely by the state courts is not "properly filed" for purposes of tolling the AEDPA clock. See Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *1 (3d Cir. Mar. 17, 2003) (to be deemed `properly filed,' an application for collateral review in state court must satisfy the state's timeliness requirements).
Petitioner's first two PCHA petitions, filed before AEDPA was enacted in April 24, 1996, cannot be grounds for equitable tolling and/or for extending Petitioner's AEDPA year. Petitioner's third petition, likewise, did not toll his AEDPA year, because the state court expressly deemed that petition untimely such that it was never "properly pending" for AEDPA's tolling purposes. See Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003) (holding "[that] an untimely application for state postconviction relief . . . was not `properly filed' for the purpose of federal habeas statute's tolling provision for the time during which a properly filed application for state post-conviction relief is pending . . . [Thus,] [a] federal habeas court [is] bound by state court's finding that habeas [P]etitioner's second state post-conviction relief petition [is] untimely"); see also Mullen, No. 2007 at 2; Commonwealth v. Mullen, Nos. 1040-1046, 1440 (Pa.Super.Ct. March 6, 2003); see also Shannon, No. 01-1308, 2003 WL 1215520 at *1. Accordingly, Petitioner filed this federal habeas more than six years beyond the ambit of AEDPA's statutory tolling provision.
If Plaintiff's third PCRA petition tolled his AEDP A year, this habeas would, nevertheless, be untimely. This petition was filed in 2001, well after Petitioner's federal habeas deadline expired in 1997.
Equitable tolling potentially could excuse Petitioner's delay. The Third Circuit has held that the one-year period of limitation in § 2254(d)(1) is a statute of limitations, not a jurisdictional bar. See Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). District courts may equitably toll the one-year period of limitation:
. . . 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." 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 (alterations in original) (citations omitted). In determining the applicability of the above guidelines, it is appropriate to examine factors such as ignorance of the rules of procedure, Petitioner's credibility as to the reason for the delay, any lack of diligence, efforts toward compliance, and an understanding of the consequences of dilatory behavior. See U.S. v. Diaz, Civ.A. 95-5616, 1999 WL 391384 at *2 (E.D.Pa. May 27, 1999); see also U.S. v. Ramsey, No. 92-590-2, 1999 WL 718079 (E.D.Pa. Aug. 26, 1999). Specifically, equitable relief will be permitted: if (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) (citations omitted) (emphasis supplied).
Application of Miller criteria to the facts of this case does not entitle Petitioner to equitable relief. He has failed to allege or demonstrate that any "extraordinary circumstance" external to himselfunfairly prohibited compliance with AEDPA's time limitation. No government agent misled Petitioner as to filing requirements or prevented him from asserting his rights. Moreover, he did not timely file this petition in an incorrect forum. Furthermore, Petitioner has failed to evince recently discovered facts or otherwise allege that he exercised "reasonable diligence" in investigating and pusuing his federal claims. Contrariwise, Petitioner delayed filing his third PCRA petition thirteen years beyond dismissal of his second (i.e. no activity whatsoever from January 22, 1988 until July 16, 2001). Finally, no change in federal Constitutional law necessitates late review of this petition. The record, devoid of factual justification for equitable tolling, warrants dismissal on procedural grounds, without a hearing.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 29th day of April 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that Petitioner's time-barred Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED without an evidentiary hearing. Petitioner has not met the procedural requirements to have his petition reviewed; therefore, he has not shown a denial of a constitutional right. Consequently, a certificate of appealability should not be issued.