Opinion
Civil Action No. 04-957.
June 7, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Kevin Hogan ("Hogan"), an individual currently incarcerated in the Coal Township State Correctional Institution. For the reasons that follow, I recommend that the petition be dismissed.
FACTS AND PROCEDURAL HISTORY :
On March 22, 1995, Hogan was sentenced to a term of life imprisonment after a jury sitting before the Honorable William J. Furber, Court of Common Pleas of Montgomery County, found him guilty of first-degree murder. Hogan filed a direct appeal in the Pennsylvania Superior Court, which affirmed the judgment of sentence on October 30, 1996. Commonwealth v. Hogan, 687 A.2d 856 (Pa.Super. 1996) (table). On April 28, 1997, the Pennsylvania Supreme Court denied Hogan's petition for allowance of appeal. Commonwealth v. Hogan, 693 A.2d 966 (Pa. 1997) (table).
On June 10, 1997, Hogan filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq., and appointed counsel subsequently filed an amended petition. After holding a hearing, the PCRA court dismissed Hogan's PCRA petition as meritless on August 2, 1999. On April 2, 2002, the Superior Court affirmed the denial of post-conviction relief. Commonwealth v. Hogan, No. 1420 EDA 2001 (Pa.Super. April 2, 2002). The Pennsylvania Supreme Court denied Hogan's petition for allowance of appeal on October 21, 2002. Commonwealth v. Hogan, No. 401 MAL 2002 (Pa. Oct. 21, 2002).
On December 30, 2002, Hogan filed a second PCRA petition. On January 7, 2003, the PCRA court dismissed the PCRA petition as untimely. The Superior Court affirmed the dismissal of the PCRA petition on December 31, 2003. Commonwealth v. Hogan, No. 550 EDA 2003 (Pa.Super. Dec. 31, 2003).
Pursuant to the amended PCRA, effective January 16, 1996, collateral actions must be filed within one (1) year of the date the conviction at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b)(1).
Hogan filed the instant petition for writ of habeas corpus on February 23, 2004. Respondents have filed an answer asserting, inter alia, that Hogan's habeas petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").
Generally, a pro se petitioner's habeas petition is deemed filed at the moment he delivers it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). Hogan signed his habeas petition on February 23, 2004; therefore, we will assume that he presented his petition to prison authorities on that date.
DISCUSSION :
Statute of Limitations
Section 101 of the AEDPA, effective April 24, 1996, amended habeas corpus law by imposing a one (1) year limitation period to applications for writ of habeas corpus filed by persons in state custody. 28 U.S.C.A. § 2244(d)(1). Section 2244, as amended, provides that the one (1) year limitation period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(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 States 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). The amended statute also provides that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).
In the instant case, the applicable starting point for the statute of limitations is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000). Hogan's conviction became final on July 28, 1997, when the time for seeking certiorari in the United States Supreme Court expired. See S.Ct.R. 13(1) (stating petitioners have ninety (90) days to file petition for a writ ofcertiorari). Therefore, Hogan would normally have had until July 27, 1998, to timely file his § 2254 petition.
However, while he was in the process of completing his direct appeal, Hogan filed his first PCRA petition on June 10, 1997. Because this petition was filed in accordance with Pennsylvania's procedural requirements, it is considered a "properly filed application" for post-conviction relief, thereby tolling the one (1) year limitation period. See 28 U.S.C. § 2254(d)(2) (the time during which a "properly filed application" for state post-conviction review is pending shall not be counted toward the one (1) year period of limitation); Artuz v. Bennett, 531 U.S. 4 (2000) ("an application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings" such as "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee"). Such a petition is considered "pending" within the meaning of § 2244(d)(2) during the time a state prisoner is pursuing his state post-conviction remedies, including the time for seeking discretionary review of any court decisions whether or not such review was actually sought. See Swartz, 204 F.3d at 424. As a result, Hogan's one (1) year grace period did not begin to run until October 21, 2002, when the Pennsylvania Supreme Court denied his petition for allowance of appeal from the dismissal of his first PCRA petition. Consequently, Hogan had until October 20, 2003, to file a timely § 2254 petition.
The ninety (90) day period during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the AEDPA limitations period. Stokes v. District Att'y of the County of Phila., 247 F.3d 539, 543 (3d Cir. 2001).
Hogan submitted the instant motion for filing on February 23, 2004, over four (4) months after the limitation period had expired on October 20, 2003. He does not assert that there has been an impediment to filing his habeas petition which was caused by state action, that his petition involves a right which was newly recognized by the United States Supreme Court, or that there are new facts which could not have been previously discovered. See 28 U.S.C. § 2244(d)(1)(B)-(D). Consequently, Hogan would be barred from presenting his claims under § 2254, unless the instant petition is subject to equitable tolling.
On December 30, 2002, Hogan filed a second PCRA petition. This petition does not toll the federal statute of limitations because it was dismissed as untimely and would not be considered a "properly filed application" for post-conviction relief. 28 U.S.C. § 2254(d)(2); Carey v. Saffold, 536 U.S. 214 (2002) (an application for collateral review in state court must satisfy the state's timeliness requirements to be deemed "properly filed");see also Merritt v. Blaine, 326 F.3d 157, 165-166 (3d Cir. 2003) (to determine whether state petition for post-conviction relief is "properly filed," as required to toll limitations period for filing federal habeas petition, federal court must look to state court's conclusion as to whether the petition for collateral relief is properly filed). Consequently, the time during which this appeal was pending would not impact this court's calculations regarding the one (1) year limitation period.
The Third Circuit has determined that the one (1) year period of limitation for § 2254 is subject to equitable tolling because this limitation period is a statute of limitations and not a jurisdictional bar. See Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1988). Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Id. (citation omitted). "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 (citations omitted). The Third Circuit has set forth three (3) circumstances in which equitable tolling is justified: (1) if 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, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted). "In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
We do not find the instant matter to be one of "rare situation[s] where equitable tolling is demanded by sound legal principals as well as the interests of justice." See Jones, supra. Hogan presents us with no evidence that he either diligently pursued his claims or was prevented in some extraordinary way from doing so. Because Hogan has not established "extraordinary" circumstances which would justify application of equitable principles, this court finds that there are no circumstances which would make the rigid application of the limitation period unfair. Consequently, Hogan's petition must be dismissed as untimely.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 2004, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections filed thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.