Opinion
Civil Action No. 05-CV-1757.
October 19, 2005
REPORT AND RECOMMENDATION
Petitioner Christopher Holmes is currently incarcerated at the State Correctional Institution at Cresson, Pennsylvania. He has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I recommend the petition be DENIED with prejudice because it is untimely.
FACTUAL AND PROCEDURAL HISTORY
On June 7, 2002, in the Court of Common Pleas of Philadelphia County, Holmes was sentenced to a term of eight-to-twenty years imprisonment pursuant to a negotiated guilty plea to corrupt organizations. As part of his plea Holmes received lesser, concurrent sentences on more than thirty related theft charges. At sentencing, the trial court directed that Holmes be credited for time served in prison beginning on February 15, 1998. On his transfer to the custody of the Pennsylvania Department of Corrections ("DOC"), Holmes learned that the DOC would not give him credit on the corrupt organizations conviction for time served before December 3, 1999, the date he was arrested for that crime. This calculation was consistent with the commitment document provided by the Clerk of Quarter Sessions, dated November 5, 2002, indicating Holmes was entitled to credit for time served only from December 3, 1999 through April 26, 2002 (totaling two years, four months, and twenty-three days). Holmes did not file a direct appeal or a petition for collateral review, pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq. Holmes does not state when he became aware of his failure to receive pre-sentence credit, nor does he reveal if he made any effort to seek further administrative review with the DOC.
As evidenced by the copy of the Clerk of Quarter Sessions file attached to Holmes' petition, the trial court stated Holmes was to be given credit beginning February 15, 1998. No explanation has been provided for the change in the amount of credit for time served reflected in the Clerk of Quarter Sessions "Revised" calculation notice to the DOC, but the amendment to the original commitment is consistent with the state statutory requirements for the calculation of such credit. See 42 Pa. C.S. § 9760; Commonwealth v. Smith, 853 A.2d 1020, 1024 (Pa.Super. 2004) (citing Commonwealth v. Miller, 655 A.2d 1000, 1002 (Pa.Super. 1995)) (where the defendant is already incarcerated for unrelated charges at the time of his arrest on charges for which he is being sentenced he must be given credit for time served from the date of arrest on the subject charges until the date of his sentencing for those charges if such time is not credited against any other sentence). In any event, Holmes failed to timely challenge the computation in the appropriate state court forum.
On February 27, 2004, Holmes filed a "motion for corrected commitment," asking the trial court to vacate its original sentence and impose a sentence that was reduced to the length of time he would serve if given credit beginning on February 15, 1998. According to Holmes, the trial court has not decided this motion. In an effort to compel the trial court to rule on his motion, Holmes also filed a petition for a writ of mandamus in the Supreme Court of Pennsylvania dated December 2, 2004. The petition was denied on April 4, 2005.
On April 15, 2005, Holmes filed this petition challenging his judgment of sentence and the trial court's failure to modify or clarify its sentence to credit Homes for time served prior to his arrest for corrupt organizations. Holmes also challenges the DOC calculation of his pre-sentence credit and its refusal to credit him for time served prior to his corrupt organizations arrest. The District Attorney of Philadelphia County contends any challenge to the sentence of the trial court is untimely and must be dismissed. The Attorney General of Pennsylvania also asserts the challenge to the DOC sentence calculation is untimely. Alternatively, they maintain the claims raised in this petition are unexhausted because Holmes has never properly presented his sentencing challenge in the state courts.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year limitation period for filing applications for writs of habeas corpus. 28 U.S.C.A. § 2244(d)(1). Specifically, 28 U.S.C. § 2244(d)(1) provides as follows:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The 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 appeal; 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.
Holmes' judgment of sentence became final on July 7, 2002, following the thirty-day period allowed for filing a direct appeal. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001) (judgment final after the expiration of the time for seeking state appellate review has expired whether or not review is actually sought); Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (judgment final after the expiration of the time for seeking certiorari has expired whether or not review is actually sought). Thus, Holmes was required to file his federal habeas petition on or before July 6, 2003.
The earliest date his federal petition can be deemed filed is April 11, 2005, the date it was signed. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) ("a pro se prisoner's petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court"). Thus, his federal petition is untimely and must be dismissed unless he can establish that the limitations period was tolled through April 11, 2005.
The AEDPA's one-year limitations period for filing a federal habeas petition is subject to both statutory and equitable tolling. 28 U.S.C. § 2244(d) (enumerating statutory tolling provisions); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003) (AEDPA's time limit is subject to the doctrine of equitable tolling, a judicially crafted exception). The AEDPA expressly prescribes statutory tolling of its one-year limitations period 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." 28 U.S.C. § 2244(d)(2). A properly filed state petition is one that is "submitted according to the state's procedural requirements, such as the rule governing the time and place for filing."Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998).
The Supreme Court has not decided whether equitable tolling applies to AEDPA's statute of limitations, but was willing to assume it was in a case in which it made no difference. Pace v. DiGuglielmo, 125 S. Ct. 1807, 1815 n. 8 (2005).
Although Holmes filed a motion to "correct" his commitment and a mandamus action seeking to compel the trial court to address the motion, he did not file a direct appeal or a collateral challenge to his sentence pursuant to the PCRA, 42 Pa. C.S.A. §§ 9541, et seq., which is the sole recourse for collateral relief from a judgment of sentence. Commonwealth v. Lantzy, 736 A.2d 564, 569 (Pa. 1999) ("the PCRA is intended to provide the sole means for obtaining collateral review and relief, encompassing all other common law rights and remedies, including habeas corpus"); see also Commonwealth ex rel. Dadario v. Goldberg, 773A.2d 126, 131 (Pa. 2001) ("where a remedy is available under the PCRA, one may not seek relief outside of the PCRA"). Thus, Holmes failed to properly challenge his judgment of sentence under state law and his efforts to seek redress in the state court are insufficient to toll the federal limitations period. Moreover, even if these petitions were proper, they were not filed until the federal limitations period had already expired and therefore could not toll the limitations period.
Holmes does not satisfy any of the statutory exceptions to the period of limitations set forth in § 2244(d)(1)(B)-(D). He does not allege any state action that prevented him from filing his petition; he does not assert any claim that relies on a new rule of retroactively applicable constitutional law; and the factual predicate upon which his claims are based was known to him at the time of his transfer to the custody of the DOC, or at the latest, by February 2004 when he first attempted to obtain a modification of his sentence in the trial court.
Holmes also asserts the DOC erroneously applied a clear sentence by failing to give him proper credit for pre-sentence time served. The DOC contends that such a challenge is untimely. Because Holmes is a state prisoner and is in custody pursuant to a state judgment, his only recourse for federal habeas relief challenging his sentence or its execution is 28 U.S.C. § 2254.See Morgan v. Lamanna, 2005 U.S. App. LEXIS 20980, *7 (3d Cir. Pa. Sept. 26, 2005) (citing Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001)); Cook v. New York State Div. of Parole, 321 F.3d 274, 278-79 (2d Cir. 2003) (state prisoner challenge to revocation of parole under § 2254). The Second, Fourth, Fifth, and Ninth Circuits have each held the limitations period applies to § 2254 petitions challenging administrative decisions affecting the execution of the state sentence. See Cook, 321 F.3d at 280 (challenge to revocation of parole); Wade v. Robinson, 327 F.3d 328, 331-32 (4th Cir. 2003) (every habeas petition filed by persons in custody pursuant to a state court judgment); Kimbrell v. Cockrell, 311 F.3d 361, 363 (5th Cir. 2002) (contesting the outcome of prison disciplinary proceedings); Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004) (challenges to prison administrative disciplinary decisions). Only the Seventh Circuit has held to the contrary. See Cox v. McBride, 279 F.3d 429, 493-94 (7th Cir. 2002) (limitation period applies to petitions contesting the judgment of a state court, but not to petitions contesting administrative decisions).
Although this is an issue of first impression in this circuit, I am persuaded by the well-reasoned opinion of Judge Trott inShelby, which examined the rationale of all cases addressing this issue. The limitations period applies to all petitions filed by a person in custody pursuant to a state court judgment.Shelby, 391 F.3d at 1065. It is not limited to petitioners challenging only the underlying state court judgment. Id. Thus, Holmes was in custody pursuant to a state court judgment within the meaning of § 2241(d)(1) even if his sentencing computation was made by the corrections department. This application of the limitations period controls for several reasons. First, as explained in Shelby, it is based on rules of statutory construction and the goals of the AEDPA. Id. Second, it is consistent with the Third Circuit's determination that a challenge to a parole revocation must proceed under § 2254, rather than the more general provisions of § 2241, because a prisoner may challenge either the imposition or the execution of a sentence under § 2254. Coady, 251 F.3d at 486. Third, it is supported by the Court's more recent determination that a petition challenging the denial of parole was a "second and successive" petition where the claim was ripe and could have been raised in an earlier habeas petition challenging the underlying conviction. See Benchoff v. Colleran, 404 F.3d 812, 817-18 (3d Cir. 2005). Thus, the Third Circuit applied a gatekeeping provision of the AEDPA to a petition challenging the execution, rather than the imposition, of a sentence. All of these reasons are consistent with the AEDPA's purpose of promoting the finality of state court judgments. See Duncan v. Walker, 533 U.S. 167, 179 (2001).
Here, Holmes' limitation period began to run the date he learned the DOC's calculation of his pre-sentence credit for time served. The triggering date for his claim was "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. § (d)(1)(D); see Redd v. McGrath, 343 F.3d 1077 (9th Cir. 2003) (factual predicate of petitioner's claims was the Board of Prisons' denial of his administrative appeal). Arguably, he was aware of this information when he was transferred to the custody of the DOC, but the pleadings do not reveal when Holmes was first advised of the calculation. In any event, Holmes knew of the calculation when he filed his motion to correct commitment on or before February 27, 2004. Thus, absent statutory or equitable tolling, Holmes was required to file his federal habeas claim on or before February 26, 2005.
The limitation period was not tolled because Holmes failed to properly challenge the DOC's sentencing calculation by filing the appropriate petition for review in the Pennsylvania Commonwealth Court, which has exclusive original jurisdiction over claims against state agencies. See 42 Pa. C.S. § 761(a), (b). A challenge to DOC's computation of a sentence must be filed in that court. See Collins v. Commonwealth, Dept. of Corr., 848 A.2d 1026, 1028 n. 6 (Pa.Commw. 2004) (writ of mandamus will lie to compel the DOC to properly compute a prisoner's sentence); Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa.Super. 1989) (appropriate redress for alleged erroneous computation of sentence by the Bureau of Corrections is in the Commonwealth Court). Holmes' motion to correct his sentence in the Court of Common Pleas could have no effect because that court has no jurisdiction over the DOC. If Holmes claims that his sentence is unclear, and that the trial court should clarify it, he was required to file a petition for writ of habeas corpus in the trial court seeking clarification and/or correction of the sentence imposed. Perry, 563 A.2d at 513. If Holmes claims that the trial court illegally denied him credit, he was required to file a post conviction relief petition in that court. Id. Holmes has failed to follow the required state procedures.
In his motion to correct commitment filed in the trial court, Holmes asserts it was the trial court's intention to give him credit for time served beginning on February 15, 1998. However, the relief requested was not that the trial court clarify the sentence or compel the DOC to calculate his sentence in this manner, but to vacate the earlier sentence and reduce the sentence by the number of days that were not credited to his sentence.
Similarly, Holmes' petition for writ of mandamus in the Pennsylvania Supreme Court directed to the Court's original jurisdiction does not toll the limitations period. The Supreme Court has original but not exclusive jurisdiction to issue writs of mandamus. 42 Pa. C.S. § 721(2). The Court has discretion to exercise its original jurisdiction, but only in cases of "imperative necessity" or extraordinary need for expedition.Commonwealth ex rel Paylor v. Claudy, 77 A.2d 350, 353 (1951). Thus, a mandamus petition filed in the Supreme Court is not a procedurally effective way to raise an issue. When the Supreme Court denies a petition without comment, as in this case, the presumption must be that it was declining to exercise its original jurisdiction, not that it was ruling on the merits.Castille v. Peoples, 489 U.S. 346, 351 (1989); see also Coleman v. Thompson, 501 U.S. 722, 735-740 (1991).
Thus, I find Holmes has not properly presented his claims challenging the DOC's calculation of his sentence to the Pennsylvania courts, and therefore, he has not tolled the limitations period. Holmes asserts no facts to establish that he is entitled to statutory tolling of the limitations period.
Finally, I find Holmes does not present any extraordinary circumstance beyond his control that would meet the judicially established criteria for disregarding the limitations period pursuant to the doctrine of equitable tolling. A litigant seeking equitable tolling must prove: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way. See Pace, 125 S. Ct. at 1814; see also Miller v. New Jersey Dept. of Corrections, 145 F.3d 616, 617-18 (3d Cir. 1998) (petitioner must show that he exercised reasonable diligence in bringing his claims; mere excusable neglect is not sufficient). The doctrine of equitable tolling should be applied sparingly,i.e., "only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice."United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (citing Alvarez-Machain v. United States, 96 F.3d 1246, 1251 (9th Cir. 1996)). Holmes has alleged no facts that could arguably satisfy this heavy burden. Under these circumstances, I must conclude that his petition is untimely.
Having found this petition untimely, there is no need to discuss Holmes' failure to exhaust state remedies. Moreover, it appears that his motion to correct commitment remains pending in the trial court.
Having determined that this petition is untimely and fails to meet any exception to the limitations period of § 2244(d)(1), I make the following:
RECOMMENDATION
AND NOW, this day of October, 2005, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. It is also RECOMMENDED that a certificate of appealability not be granted.