Opinion
CIVIL ACTION NO. 04-2811.
September 14, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus. For the reasons stated below, this court recommends that the petition be dismissed because it is barred by the one-year statute of limitations for the filing of a habeas corpus petition.
I. BACKGROUND
On June 3, 1999, a jury sitting in the Court of Common Pleas for Philadelphia County convicted petitioner of first degree murder, two counts of robbery, aggravated assault, conspiracy and possessing an instrument of crime ("PIC"). (C.P. No. 0751 1/1.) On June 7, 1999, the jury sentenced petitioner to life imprisonment on the murder conviction. On September 28, 1999, petitioner was sentenced to a consecutive sentence of seven to twenty years imprisonment on the aggravated assault conviction, and concurrent terms of imprisonment of six to twenty years on each of the robbery convictions, five to ten years on the conspiracy conviction, and two to five years on the PIC conviction.
After sentencing, petitioner's counsel filed a notice of appeal, but never filed an appellate brief. On August 31, 2000, the Superior Court of Pennsylvania dismissed the appeal due to the lack of the brief. Petitioner contends that he first became aware that his appeal had been dismissed on or about June 8, 2003 after he requested the docket from the Pennsylvania Superior Court. (Mem. Supp. Pet. at 5.)
Trial counsel's failure to file an appellate brief apparently was due to the fact that petitioner's family told counsel at the sentencing hearing that they were going to hire replacement counsel to represent petitioner on appeal. They never did so. See Finley Letter at 2 (Response Ex. C).
On August 11, 2003, petitioner filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Counsel was appointed and filed a no merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.Ct. 1988). (Response Ex. C.) The PCRA court dismissed the petition on June 16, 2004 finding it to be untimely. Commonwealth v. Lewis, No. 0751 1/1, slip op. at 1-2 (Comm. Pl. Phila. June 16, 2004).
Petitioner asserts that he filed a motion to withdraw his PCRA petition on June 10, 2004. (Mem. Supp. Pet. at 11.) The court did not rule on this motion prior to dismissing the petition on June 16, 2004. See Response at 2 n. 2.
On June 25, 2004, petitioner filed the instant pro se habeas petition. Petitioner contends that trial counsel was ineffective for failing to file an appellate brief and preserve his appellate rights. (Mem. Supp. Pet. at 6.) The District Attorney of Philadelphia filed a response in which she argued that the petition should be dismissed as untimely because it was not filed within the one-year statute of limitations as required by 28 U.S.C. § 2244.
II. DISCUSSION
Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year limitations period for the filing of a habeas corpus petition and in relevant part provides:
(1) 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 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.
(2) 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 shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d). See generally Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944 (2001); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998).
The effective date of the statute was April 24, 1996. AEDPA's one-year limitations period allows prisoners a one year grace period following the effective date of the statute to file their habeas corpus petitions if their convictions became final prior to that effective date. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Petitioner's conviction became final on September 30, 2000. Since this date is after the effective date of the AEDPA, the grace period does not apply.
Here, petitioner's conviction became final on September 30, 2000, when the time for seeking review of the Superior Court's dismissal of his appeal expired. See Pa. R. App. P. 1113(a). Thus, petitioner had until September 29, 2001 to file a timely habeas petition. Petitioner filed the instant petition on June 25, 2004, nearly three years after the statute of limitations expired.
The subsection of 28 U.S.C. § 2244(d)(1) applicable to the instant case is § 2244(d)(1)(A). None of the other possible "start dates" listed in § 2244(d)(1)(B)(C) and (D) apply here.
The one-year statute of limitations is tolled during the time petitioner had pending in the state courts a properly filed PCRA petition. See 28 U.S.C. § 2244(d)(2) (providing that the time during which a "properly filed" petition for collateral relief is pending is not counted toward the one-year statute of limitations). Petitioner's untimely PCRA petition, filed almost two years after the AEDPA's limitation period had already expired, did not toll that limitations period. See Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir.), cert. denied, 124 S.Ct. 317 (2003).
The Third Circuit has held that the federal habeas statute of limitations is subject to equitable tolling in only extraordinary circumstances. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In Miller, the court stated the following:
[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. 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 (interior quotations and citations omitted). Equitable tolling may be found only when: (1) the state has actively misled the petitioner; (2) the petitioner has in some extraordinary way been prevented from asserting his rights; or (3) the petitioner has timely asserted his rights but in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).See also Johnson v. Hendricks, 314 F.3d 159, 162 (3d Cir. 2002) (reaffirming the principles of equitable tolling enunciated in Jones v. Morton). 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, 240 F.3d at 244. A "statute of limitations should be tolled only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice."Jones, 195 F.3d at 159.
Petitioner contends that he is entitled to equitable tolling of the AEDPA statute of limitations because he did not learn that his appeal had been dismissed until June 8, 2003. (Mem. Supp. Pet. at 15-16.) Petitioner is not entitled to equitable tolling because he did not exercise "reasonable diligence in investigating and bringing his claims." Petitioner's trial counsel filed a timely notice of appeal in the Superior Court of Pennsylvania after petitioner's sentencing in September 1999. Petitioner did not investigate the status of this appeal for almost four years, from October 1999 until June 8, 2003. Petitioner was not reasonably diligent in investigating and bring his claims. See Mack v. Vaughn, 2004 WL 257387, at *3-4 (E.D. Pa. Jan. 30, 2004) (Scuderi, J.) (no equitable tolling where counsel did not learn of Pennsylvania Supreme Court's October 30, 2002 dismissal of allocatur until June 5, 2003 when counsel contacted court to inquire about status), approved and adopted, 2004 WL 350183 (E.D. Pa. February 23, 2004) (Buckwalter, J.); Cooper v. Price, 2003 WL 31238884, at *3-4 (E.D. Pa. Oct. 2, 2002) (Kelly, J.M.J.) (no equitable tolling where counsel did not learn of Pennsylvania Supreme Court's July 12, 1996 decision denying allocatur until September 30, 1997);Carter v. Vaughn, 2002 WL 1565229, at *3 (E.D. Pa. July 10, 2002) (Kelly, J.M.J.) (prisoner did not act diligently by waiting over one year to check on status of appeal, no equitable tolling); Ayala v. Superintendent, 2002 WL 207173, at *1 (E.D. Pa. Feb. 8, 2002) (Ludwig, J.) (no equitable tolling where petitioner filed PCRA petition in December 1996 but did not learn of its June 5, 1997 denial until February 14, 2001, despite sending four letters to court inquiring as to status of petition). See also Davis v. Lavan, 2004 WL 828367, at *3-*5 (E.D. Pa. Mar. 12, 2004) (Scuderi, J.) (same), approved and adopted, 2004 WL 1109758 (E.D. Pa. April 30, 2004) (Pollak, J.). The instant matter is not one of those "rare situation[s] where equitable tolling is demanded by sound legal principals as well as the interests of justice." Jones, 195 F.3d at 159.
The exact date that trial counsel filed the notice of appeal in the Superior Court of Pennsylvania is unknown from the present record. However, the notice of appeal was filed timely after his sentencing on September 28, 1999. The notice of appeal, therefore, most likely was filed in October 1999. See Pa. R. App. P. 903. See also Response at 4 (notice of appeal filed in October 1999).
For all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 14th day of September, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DISMISSED as time-barred by the statute of limitations, and that no certificate of appealability be granted.
The certificate of appealability should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).