Opinion
Civil Action No. 01-1316.
June 29, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a petition for writ of habeas corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution ["SCI"] Smithfield in Huntingdon, 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
The facts in this discussion have been taken from Mr. Leaphart's original and amended habeas petitions, the Commonwealth's response, Petitioner's traverse, the Commonwealth's surreply, a February 10, 2004 statement filed by the Commonwealth and the state court records.
On May 1, 1982, following a jury trial before the Honorable Joseph T. Murphy of the Philadelphia County Court of Common Pleas, Petitioner was convicted of first degree murder and possession of an instrument of crime. " Response to Petition For Writ of Habeas Corpus" [Docket Entry No. 14] (hereinafter "Commonwealth's Response"): Exhibit "A" (November 29, 1985 Superior Court Opinion) at p. 1.
The facts underlying Petitioner's convictions were described the Superior Court as follows:
"On January 7, 1980, Charles Hatten and David Green were loitering outside a poolhall on Germantown Avenue in Philadelphia. Appellant [Petitioner] approached and the three young men exchanged greetings. Seconds later, appellant walked twenty-five feet away, turned, withdrew a thirty-eight caliber handgun and fired several shots at Green. One bullet struck Green in the eye, causing his death."Id.
On February 13, 1985, after hearing and denying post verdict motions, Judge Murphy sentenced Petitioner to life imprisonment, plus a concurrent two and one half to five years for the weapons offense. Id.
Petitioner filed a direct appeal to the Pennsylvania Superior Court, raising the following issues:
(1) Whether trial counsel was ineffective for
(a) not objecting to allegedly prejudicial statements made by the prosecutor during closing;
(b) failing to interview eyewitnesses;
(c) relying on the discovery of the district attorney rather than conducting his own investigation;
(d) withdrawing his motion to remand the proceedings to juvenile court.
(2) Whether the court erred in admitting the testimony of ten-year-old Timothy Ruffin because the competency voir dire failed to establish that he understood an oath and the consequences of lying;
(3) whether the photo array was unduly suggestive and prejudicial;
(4) whether trial counsel was ineffective for failing to remove himself due to his inexperience with capital cases;
(5) whether the trial court erred in denying petitioner's right to present expert testimony on the effect of his trial counsel's inexperience; and
(6) whether he was prejudiced by the delay of sixteen months between the crime and his arrest.Commonwealth's Response: Exhibit "A" (November 29, 1985 Superior Court Opinion) at p. 1-12.
The Superior Court rejected all claims on the merits. Id.
Petitioner filed a petition for permission to file a request for allowance of appeal nunc pro tunc to the Supreme Court of Pennsylvania. Allocatur was denied on November 24, 1986. Id at Exhibit "B".
On June 5, 1996, petitioner submitted his first pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ["PCRA"], 42 Pa.C.S.A. § 9541 et seq, raising claims of trial counsel ineffectiveness. Counsel was appointed and filed a no merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.Ct., 1988). Commonwealth's Response: Exhibit "C" (November 29, 1999 Superior Court Opinion) at p. 2.
On May 12, 1997, the PCRA petition was dismissed. Petitioner did not appeal. Id.
On May 5, 1998, petitioner filed a second pro se PCRA petition, claiming ineffective assistance of both trial and appellate counsel. On October 5, 1998, the petition was dismissed as untimely. Id.
Petitioner appealed the denial of his second PCRA petition. On appeal, Petitioner asserted that the amendments to the PCRA are unconstitutional because they did not provide him with "fair warnings of its effects." Id at p. 3.
In a November 29, 1999 Memorandum and Order, the Superior Court rejected Petitioner's constitutional argument and affirmed the PCRA court's dismissal of the petition as untimely. Id at p. 4. Petitioner sought discretionary review in the State Supreme Court, which was denied March 15, 2000. State Court Record: Appeal Docket Sheet for 3370 PHL 1998 at p. 4.
On February 26, 2001, Petitioner signed and dated this instant habeas petition. It was filed in this Court on March 20, 2001. Habeas Petition [Docket Entry No. 1].
For the purposes of this Report and Recommendation, under the prison mailbox rule, I will accept the earliest date, February 26, 2001, as the date of filing.
As grounds for habeas relief, Petitioner presents the following issues:
1. Prosecutorial Misconduct in eliciting unduly prejudicial testimony.
(a) "An immunized witness, Charles `Mohammed' Hatton, testified that he failed initially to identify petitioner as the murderer because he was afraid he `would be the next victim that would be killed.' Prejudice was assured by the Prosecutor repetition of this twice in the closing."
(b) "A Commonwealth witness was permitted to bring out before the jury the defendant's prior incarceration in a juvenile institution."
2. Ineffective Assistance of Trial Counsel.
Trial counsel failed to object to:
(1) prejudicial testimony;
(2) jury instructions inferring malice or the intent to kill from the intentional use of a deadly weapon; and
(3) charge the jury that the testimony of an immunized witness should be viewed with great caution and/or coming from a "corrupt and polluted source."
3. Ineffective Assistance of Appellate Counsel.
Appellate counsel failed to raise trial counsel's failure to object to "(1) through (3)."
4. A violation of Petitioner's Due Process by the use of an unduly suggestive photographic identification array.
5. Counsel Ineffectiveness
All prior counsel were ineffective for failing to preserve petitioner's claims for further review.
6. The trial court violated the Due Process Clause by imposing a sentence of life imprisonment without parole that is not clearly authorized by Pennsylvania statutory law for a post-1974 first degree murder not involving arson or a "three-strikes" violation.Petitioner's Amended Habeas Corpus, September 18, 2001 at pp. 9-11.
On June 24, 2003, Respondents answered the habeas petition arguing that it is time barred under 28 U.S.C. § 2244(d)(1). In the alternative, Respondents argue that Petitioner's habeas claims are procedurally defaulted. Commonwealth's Response at p. 5.
On November 12, 2003, Petitioner filed a traverse to Respondent's answer, alleging that the AEDPA statute of limitations is unconstitutional. In the alternative, Petitioner requests equitable tolling of the habeas statute of limitations and argues that his claims are not procedurally defaulted.
On December 22, 2003, the District Attorney filed a Sur-Reply arguing that AEDPA is constitutional, petitioner is not entitled to equitable tolling, and his claims are procedurally defaulted.
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)(1), 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 the 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 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. Leaphart's conviction became final.
In applying the habeas statute of limitations to convictions which became final before AEDPA was signed into law, the Third Circuit has held that habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with § 2244(d)(1)'s time limit. See Burns v. Morton, 134 F.3d 109, 111(3d Cir. 1998).
In the instant case, Mr. Leaphart's conviction became final on February 24, 1987, when the time for seeking certiorari review in the United States Supreme Court (90 days) expired. Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) ("Therefore a state court criminal judgment is final (for purposes of collateral attack) at the conclusion of review in the United States Supreme Court or when the time for seeking certiorari review expires."). Because Petitioner's conviction became final before the effective date of AEDPA, he would not have been barred by the statute of limitations from filing a habeas petition on or before April 23, 1997. See Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999) (AEDPA's one year statute of limitations begines to run on April 24, 1996 (the date of AEDPA's enactment) for a petitioner whose conviction became final before that date).
Petitioner's habeas statute of limitations began on April 24, 1996, and absent any statutory tolling, would have expired on April 23, 1997.
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's first PCRA petition was filed on June 5, 1996, prior to the expiration of his habeas statute of limitations. This petition was timely and therefore "properly filed" under state law. As of June 5, 1996, thirty-one days of Petitioner's one year habeas statutory period had expired. Petitioner's first PCRA petition statutorily tolled the remainder of his habeas limitations period from June 5, 1996 until June 12, 1997, when the petition ceased to be pending. On June 13, 1997, Petitioner's habeas statutory period began to run again, and expired three hundred and thirty-four days later on May 13, 1998.
In his traverse [Docket Entry No. 18], Petitioner argues that, under the prison mailbox rule, his first PCRA petition was filed prior to June 5, 1996, the date on which the PCRA petition was received and docketed in the state court. According to Petitioner, the burden is on the Respondents to "disprove petitioner's position that the mailing occurred well before June 5, 1996," because they maintain the prison records.
I have reviewed the state court record and neither of the Petitioner's PCRA petitions are dated. Assuming arguendo, that I were to accept Petitioner's argument that he was entitled to an additional tolling period prior to June 5, 1996, this would not alter my conclusion that his habeas petition is time-barred.
Petitioner filed a second PCRA petition on May 5, 1998. However, this petition was untimely and was, therefore, not "properly filed" under state law. This second PCRA petition does not statutorily toll Petitioner's one year habeas limitations period. See Carey v. Saffold, 536 U.S. 214, 225 (2002) (an untimely application for collateral review is not "properly filed," and does not statutorily toll the habeas limitations period.) See also Phillips v. Vaughn, No. 02-2109, 2003 WL 202472 at *2 (3d Cir. January 29, 2003) (" Carey made quite clear that to be deemed `properly filed,' an application for collateral review in state court must satisfy the state's timeliness requirements."), cert. denied, 123 S.Ct. 1761 (2003). The instant habeas petition, filed on February 26, 2001, was filed over two and one half years beyond the expiration of Petitioner's habeas statutory period and is time-barred.
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] claims.' Mere excusable neglect is not sufficient." Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *4 (3d Cir. March 17, 2003) (citations omitted).
Equitable tolling may be appropriate where "(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).
In his traverse, Petitioner alleges a variety of circumstances which he asserts entitles him to equitable tolling, including inter alia:
(1) Petitioner was ill served by a series of attorneys on direct appeal and in the PCRA forum;
(2) Petitioner has proceeded in good faith and made reasonable efforts to exhaust his state remedies;
(3) The calculation of the AEDPA statute of limitations is very technical and difficult; and
(4) Petitioner's sentence, life without parole imposed before Petitioner was even 20 years old, is extraordinarily harsh.See Traverse at pp. 14-19.
The circumstances alleged by Petitioner, and the record before me, do not support a finding that this case presents the "rare situation" which demands equitable tolling of the habeas statute.
C. Constitutionality of the AEDPA
Petitioner challenges the constitutionality of AEDPA, alleging that it violates Due Process since there is no grace period articulated in the statute. The one year grace period adopted by the courts is, according to the petitioner, an unconstitutional judicial usurpation of a legislative power. Petitioner further argues that the imposition of a period of limitations constitutes a suspension of the writ.
Petitoner's claims were addressed by the Third Circuit in Lively v. Superintendent, 90 Fed. Appx 22 (3d Cir. 2004) (non-precedential). In Lively, the District Court certified the following questions, inter alia, to the Third Circuit: (1) whether the judicially-created "grace period" for filing of habeas corpus petitions by state prisoners whose convictions became final prior to April 23, 1996 is extendable in the interests of fairness and reason, or is the strict one year limitations period subject to statutory and equitable tolling; and (2) whether the "grace period," if limited to a strict year, violates either the Suspension Clause or the Due Process Clause of the Constitution. Id at 24.
The Third Circuit found these issues controlled by Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). "Accordingly, that limitations period beginning April 24, 1996 lasts one year and that it is constitutionally valid are no longer subjects upon which jurists of reason can disagree." Lively, 90 Fed. Appx 22, 24-25 (3d Cir. 2004) (non-precedential). Therefore petitioner's constitutional claims are without merit, and his untimely habeas petition is not subject to federal review.