Opinion
Civill Action No. 05-5845.
April 17, 2006
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Larry Leggitt ("Petitioner"), an individual currently incarcerated in the State Correctional Institute at Smithfield, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed.
I. FACTS AND PROCEDURAL HISTORY
On April 27, 1995, a jury sitting before the Honorable J. Earl Simmons, Court of Common Pleas of Philadelphia County, convicted Petitioner of first-degree murder, aggravated assault, criminal conspiracy, recklessly endangering another person, carrying a firearm on public streets, and possession of an instrument of crime. After a penalty hearing, the jury returned a verdict of life imprisonment for the first-degree murder conviction. On January 23, 1996, Petitioner received a consecutive aggregate term of fifteen (15) to thirty-seven (37) years of incarceration for the remaining convictions. Petitioner appealed to the Pennsylvania Superior Court, which affirmed the judgment of sentence on December 3, 1996.Commonwealth v. Leggitt, 697 A.2d 276 (Pa.Super. 1996) (table). Petitioner filed a request for allowance of appeal with the Pennsylvania Supreme Court, which was denied on June 2, 1997.Commonwealth v. Leggitt, 698 A.2d 65 (Pa. 1997). Petitioner did not seek a writ of certiorari from the Supreme Court of the United States.
According to the facts as determined at trial, Petitioner harassed and threatened his ex-girlfriend for an extended period and then went to her place of employment at a Philadelphia law office with a co-conspirator and served as a lookout while the co-conspirator shot the victim six (6) times, killing her.
On August 17, 1999, Petitioner filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. After reviewing Petitioner's claims, court-appointed counsel filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). On January 21, 2000, the PCRA court filed a notice of intention to dismiss the petition without a hearing. However, on March 15, 2000, appointed counsel filed a motion to withdraw hisFinley letter, which the PCRA court granted. An amended PCRA petition was filed on May 4, 2000, and an evidentiary hearing was held on May 25, 2000. On June 1, 2000, the PCRA court denied Petitioner's petition. Petitioner appealed to the Pennsylvania Superior Court, which affirmed the denial of PCRA relief on November 16, 2001, on the basis that the petition was untimely.Commonwealth v. Leggitt, No. 1903 EDA 2000 (Pa.Super. Nov. 16, 2001). Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
On December 18, 2001, Petitioner filed a second pro se PCRA petition, which was dismissed as untimely on June 6, 2002. Petitioner appealed to the Pennsylvania Superior Court, which affirmed the dismissal of his second PCRA petition on August 25, 2003. Commonwealth v. Leggitt, No. 2109 EDA 2002 (Pa.Super. Aug. 25, 2003). On March 23, 2004, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Leggitt, 847 A.2d 1281 (Pa. 2004).
Petitioner filed a third pro se PCRA petition on May 18, 2004, which was dismissed as untimely on September 2, 2004. Petitioner appealed to the Pennsylvania Superior Court, arguing that his application for relief was timely because he had attempted to assert a claim based on a new United States Supreme Court case, Crawford v. Washington, 541 U.S. 36 (2004). On June 9, 2005, the Pennsylvania Superior Court affirmed the dismissal of his third PCRA petition as untimely, arguing that even if Crawford applied retroactively, Petitioner failed to present the claim within sixty (60) days of the Crawford decision as required by Pennsylvania law. Commonwealth v. Leggitt, No. 2691 EDA 2004 (Pa.Super. June 9, 2005). On October 26, 2005, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Leggitt, 887 A.2d 769 (Pa. 2005). On November 1, 2005, Petitioner filed the instant petition for writ of habeas corpus, raising the following claims:
In Crawford, the United States Supreme Court held that where "testimonial" statements against a defendant are made at trial, as opposed to "nontestimonial hearsay," the Confrontation Clause requires that the defendant be afforded the opportunity to cross-examine the witness. The Supreme Court explicitly postponed any effort to spell out a comprehensive definition of "testimonial." See 541 U.S. at 68. Petitioner argues thatCrawford applies in this case because the prosecution introduced statements from the victim's diary, the statements constituted "testimonial" hearsay, and Petitioner never had an opportunity to cross-examine the victim. See Pet. at 9 (front and reverse), Br. at 10-11.
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)). Because the petition is dated November 1, 2005, I will assume he delivered it to prison authorities for mailing on that date.
1. Violation of due process and Confrontation Clause rights when the trial court admitted into evidence excerpts from the victim's alleged diary; and
2. State court error for finding that his third pro se PCRA petition was untimely.
In their Answer, Respondents erroneously assert that Petitioner raises twelve (12) claims in the instant petition, and that he abandoned ten (10) of the claims by failing to address them in his brief. See Answer at 3-4, 12-13. Respondents' analysis is based upon an (understandable) misreading of the petition, wherein Petitioner listed all of the claims he had raised before the state courts and separately listed his present claims. Specifically, whereas Petitioner set forth two (2) grounds for relief on page 9 of the petition — the same two (2) claims addressed in his brief and herein by me — he also listed all of the claims he raised in his third petition for collateral relief, designated (A) through (J), beginning on the front of page 7 and continuing onto the back of page 8. In other words, Respondents apparently assumed that Petitioner's claims (A) through (J) were asserted in the instant petition, rather than before the state courts. In any event, because Petitioner only raises two (2) claims in the instant petition — a reading confirmed by Petitioner in his Traverse — it is not necessary for the court to discuss whether Petitioner abandoned or procedurally defaulted the other claims.
On February 6, 2006, Respondents filed an answer asserting that Petitioner's habeas petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") or, in the alternative, that the claims are procedurally defaulted and/or meritless. On February 21, 2006, Petitioner filed a Traverse arguing that his petition is timely and meritorious.
II. DISCUSSION
A. Statutory Tolling
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). Petitioner's conviction became final on September 2, 1997, ninety (90) days after his judgment of sentence was affirmed by the Pennsylvania Supreme Court on direct appeal. 28 U.S.C. §§ 2101(c), 2244(d)(1)(A); see Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999) (stating direct review becomes final at conclusion of petitioner's time for seeking certiorari in the United States Supreme Court). As a result, Petitioner had until September 2, 1998, to file his § 2254 petition. See 28 U.S.C. § 2244;Duncan v. Walker, 533 U.S. 167 (2001).
As previously noted, Petitioner did not file his first pro se PCRA petition until August 17, 1999 — nearly one (1) year after the AEDPA grace period expired. Moreover, because the state courts dismissed all three (3) of his PCRA petitions as untimely, they would not be considered "properly filed applications" for post-conviction relief which would toll the federal statute of limitations. 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); Schlueter v. Varner, 384 F.3d 69, 78 (3d Cir. 2004); Merritt v. Blaine, 326 F.3d 157, 165-166 (3d Cir. 2003). Thus, the period of time during which any of Petitioner's untimely PCRA petitions were pending in the state courts would not have tolled the running of the one (1) year limitation period, even if the limitation period had not already expired.
Petitioner argues that the AEDPA limitation period should be statutorily tolled pursuant to § 2244(d)(1)(C) because the United States Supreme Court recognized a new constitutional right in Crawford announced on March 8, 2004, and because the new right applies retroactively. I disagree. Although the Third Circuit has not addressed the issue of whether Crawford applies retroactively, all but one (1) of the Circuit Courts to have addressed the issue have held that it does not, under the rationale that newly promulgated rules of criminal procedure generally do not apply retroactively to cases on collateral appeal. See Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005) (holding rule announced in Crawford does not apply retroactively); Murillo v. Frank, 402 F.3d 786, 790 (7th Cir. 2005) (same); Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (same), cert. denied, 125 S. Ct. 1936 (2005); Brown v. Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004) (same), cert. denied, 125 S. Ct. 940 (2005); see also Ferguson v. Roper, 400 F.3d 635, 639-640 (8th Cir. 2005) (stating in dicta that Crawford probably does not apply retroactively, but concluding that petitioner would not be entitled to relief even if it did). But see Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005) (stating Crawford "could not be dismissed as a mere tweak on the admissibility of hearsay" and concluding rule applies retroactively because of its importance).
I am persuaded by the majority of the Circuit Courts which have found that Crawford does not apply retroactively. Because § 2244(d)(1)(C) requires tolling only when a newly-created constitutional right applies retroactively, the AEDPA limitations period did not statutorily toll by operation ofCrawford. As a result, Petitioner's habeas petition is time-barred, unless the limitations period is subject to equitable tolling.
Even were the Court to find otherwise, Petitioner is not entitled to the protection afforded by the Crawford decision. In Ground One (1), Petitioner argues that his due process and Confrontation Clause rights were violated when the trial court admitted into evidence excerpts from the victim's alleged diary purporting to show that Petitioner harassed and threatened his ex-girlfriend before she was murdered. Specifically, Petitioner argues that the diary statements constitute "testimonial" hearsay, thereby triggering the Confrontation Clause rights enunciated in Crawford. See Pet. at 9, Br. at 7-11. Even if the Court were to conclude that Crawford applies retroactively (which it does not), and even if the Court were to find that the statements from the victim's diary constituted "testimonial" hearsay (which it will assume arguendo), Petitioner would still not be entitled to relief on this claim. The victim in this case was Petitioner's ex-girlfriend who was shot six (6) times and killed by Petitioner's co-conspirator while Petitioner served as a lookout. The law is clear that individuals who participate in a murder are in no position to complain that they cannot subsequently cross-examine the murder victim, on the principle that wrongdoers should not benefit from their wrongdoing. See, e.g., Reynolds v. United States, 98 U.S. 145, 158-159 (1879) ("[B]ut if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away"); United States v. Garcia-Meza, 403 F.3d 364, 370 (6th Cir. 2005) (stating defendant forfeited Sixth Amendment right to cross-examine wife because defendant murdered her). Even Crawford, the case upon which Petitioner relies, acknowledged the traditional "essentially equitable" rule that one forfeits the Sixth Amendment right to confrontation when the inability to cross-examine the witness is the result of one's own misconduct.Crawford, 541 U.S. at 62. Accordingly, Petitioner would not be entitled to relief on this claim.
To the extent Petitioner would argue that the state created an impediment to filing his habeas petition by allegedly delaying notification of the Pennsylvania Supreme Court's 1997 order denying his petition for allowance of appeal on direct appeal, I disagree. A state court clerk's alleged failure to timely mail an opinion does not constitute a state-action impediment sufficient to trigger § 2244(d)(1)(B). See Maraj v. Gillis, 2005 WL 2336, at *1-2 (E.D. Pa. Jan. 4, 2005). Moreover, to the extent Petitioner would argue that Crawford gave rise to a factual predicate that could not have been previously discovered through the exercise of due diligence, see § 2244(d)(1)(D), such an argument also fails. The Crawford decision has nothing to do with the factual predicates of Petitioner's claims, but even if it did, Petitioner did not file the instant habeas petition until November 1, 2005, more than one and one-half (1½ years after theCrawford decision. For these additional reasons, Petitioner is not entitled to statutory tolling.
B. Equitable Tolling
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).
I 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. Petitioner presents us with no evidence that he either diligently pursued his claims or was prevented in some extraordinary way from doing so. Rather than file a timely federal habeas petition, Petitioner filed three (3) successive and untimely PCRA petitions with the state courts, on August 17, 1999, December 18, 2001, and May 18, 2004, respectively. Although Petitioner alleges that he received late notice of the Pennsylvania Supreme Court's denial of his petition for allowance of appeal on direct appeal, the alleged lack of notice of an unfavorable decision does not constitute "extraordinary circumstances" sufficient to justify equitable tolling. LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005);see also Ball v. Grace, 2005 WL 433456, at *3-4 (E.D. Pa. Feb. 24, 2005) (holding alleged failure of courts and counsel to notify petitioner of adverse state court opinion not "extraordinary circumstances"). Similarly, Petitioner is not entitled to equitable tolling as a result of his own mistaken beliefs regarding the AEDPA filing deadline. See Felder v. Johnson, 204 F.3d 168, 172-173 (5th Cir. 2000) (holding petitioner's lack of knowledge of federal filing deadline does not justify equitable tolling, even where petitioner is pro se); Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (same); Miller, 145 F.3d at 618-619 (stating habeas petitioner required to exercise reasonable diligence, and mere excusable neglect is insufficient). Because Petitioner 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, the petition must be dismissed as untimely. Therefore, I make the following:
In any event, the Court notes that Petitioner's second and final claim is non-cognizable in the context of a federal habeas petition. In Ground Two (2), Petitioner argues that the state courts incorrectly determined that his pro se applications for state post-conviction relief were untimely, particularly the state courts' finding that he failed to file his third PCRA petition within sixty (60) days of the Crawford decision as required by Pennsylvania law. See Pet. at 9, Br. at 11-20. Under 28 U.S.C. § 2254(a), a federal court is required to consider only habeas petitions filed on behalf of individuals in custody pursuant to a state court judgment which are grounded on a violation of the Constitution or the laws or treaties of the United States. Werts, 228 F.3d at 195-196. The state courts' application of the sixty- (60-) day rule set forth by 42 Pa.C.S.A. § 9545(b) is strictly related to a state procedural rule and is a matter of state law. Therefore, even if the Court were to find the habeas petition to be timely, Petitioner's second claim would be non-cognizable. See Werts, supra.
RECOMMENDATION
AND NOW, this 13th day of April, 200, 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, 2006, 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.