Opinion
Civil Action No. 04-1679.
November 1, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a pro se 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"] Albion, Pennsylvania, where he is serving a life sentence for second degree 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. Lewis' original and resubmitted habeas petitions, the Commonwealth's response, and the state court records.
On January 16, 1997, following a jury trial before the Honorable Michael J. Perezous of the Lancaster County Court of Common Pleas, Petitioner and two co-defendants were convicted of second degree murder for their roles in the May 23, 1996 shooting death of a convenience store employee. State Court Records: September 25, 1997 Memorandum Opinion of the trial court [identified as "Page 31" in lower right-hand corner] at p. 2.
Petitioner was tried with Rodney Lee Walton and Clarence Laudenberger. All three co-defendants were convicted of second degree murder. The alleged shooter, Aramis Gonzalez, III, was tried in a separate jury trial. On January 9, 1997, Mr. Gonzalez was convicted of first degree murder. He was also sentenced to life imprisonment. Id.
The facts underlying Petitioner's conviction was described by the trial court as follows:
"The evidence showed the four defendants acting in concert before, during and after the killing to plan and execute a robbery through such steps as (1) procuring disguises and latex gloves (Walton), a handgun (Gonzalez), and transportation (Laudenberger), (2) continuing their escapade even after confronted by an initially ignorant, then unwilling getaway driver (Nicole Wiseman) [footnote omitted], (3) checking for a locale without video surveillance (Lewis), (4) pursuing a prearranged escape route, and (5) meeting at a predetermined site (Walton's home) to dispose of incriminating materials.
The 38 year old victim died of his injuries, consisting of massive trauma, hemorrhaging, and blood loss from a single gunshot wound to the neck, within minutes of the attack, leaving a gory trail of blood as he struggled vainly to reach a telephone and dial for help before expiring. He left behind a 29 year old wife of five and one-half years and a son, age 11.
The Commonwealth presented substantial evidence to support the `first degree' murder charge against Gonzalez. from the motivational — Moyo Gonzalez' desire to be accepted into a local gang by fulfilling the requirement of killing someone — to the observed — the point-blank range at which the gun was fired on a count of `one, two, three.' The `second degree' murder charges and convictions arose from jury-determined facts and evidence showing classic felony-murder: Walton, Laudenberger, and Lewis bore accomplice liability for the killing committed by Gonzalez in furtherance of and/or as a foreseeable consequence of their common robbery plan. The three `non-shooters' argued at trial that Gonzalez' murderous act was unplanned or unforeseeable, but the jury weighed considerable evidence and found otherwise by its verdicts against them; in essence, the jury held them accountable as co-conspirators.
In separate pretrial proceedings, the court found, respectively, that each of the four minor defendants had failed to meet the burden of obtaining decertification and that their suppression motions were without merit. Therefore, the court denied the relief sought, bound them over for adult trial as charged, and refused to bar certain evidence from trial."Id. at pp. 2-4.
On January 16, 1997, Anthony Rashan Lewis was sentenced to a mandatory life sentence. Id. at p. 9.
Petitioner filed a direct appeal to the Pennsylvania Superior Court, raising the following issues:
(1) Whether the evidence presented was sufficient to support a verdict of guilty beyond a reasonable doubt?
(2) Whether the trial court erred in denying Appellant [Lewis]'s omnibus pre-trial and supplemental omnibus pre-trial motions?
(3) Whether the trial court erred in denying Appellant's motion to decertify his case to the juvenile court?
(4) Whether the trial court erred in failing to charge the jury on the affirmative defense of duress?"Respondent's Answer To The Petition For Writ Of Habeas Corpus" [Docket Entry No. 11]: Exhibit "A" (February 28, 1995 Superior Court Opinion) at p. 4-5
Hereinafter "Commonwealth's Answer."
Petitioner was tried jointly with his brother, George Grabfelder. George Grabfelder was convicted of three counts of aggravated assault and one count of possession of an instrument of crime. Commonwealth's Response: Exhibit "C" (February 28, 1995 Superior Court Opinion) at p. 1 n. 1.
In a February 28, 1995 Opinion, the Superior Court rejected all claims on the merits and affirmed the judgment of sentence. Id. at pp. 5-18.
Petitioner sought discretionary review in the Supreme Court of Pennsylvania. Allocatur was denied on July 23, 1999. Commonwealth's Answer: Exhibit "B" (July 23, 1999 Pa. Supreme Court Order).
On January 14, 2000, Petitioner submitted a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ["PCRA"], 42 Pa.C.S.A. § 9541 et seq. As grounds for PCRA relief, Petitioner asserted:
"(1) Trial counsel was ineffective for failure to investigate, and/or interview, and to present crucial witnesses. (Psychiatrist) who had treated Petitioner for mental disorders prior to the incident in question. This evidence was crucial to the defense on the issue of whether the Defendant could have distinguish[ed] right from wrong. (2) Appellate counsel was ineffective for his failure to argue trial counsel's ineffectiveness on the above mentioned issue. (3) The evidence was insufficient as a matter of law to sustain the verdict. (4) The verdict was against the weight of the evidence. (5) The verdict was contrary to law. (6) Trial court abused it's discretion in denying defense request to charge the jury on defense of duress."State Court Records: PCRA Petition at p. 3. Counsel was appointed. State Court Records: January 14, 2000 PCRA Court Order (identified as "34" in the lower right hand corner).
By Order dated March 2, 2000, the PCRA Court denied Petitioner's request for post-conviction collateral relief, concluding that the grounds raised were meritless. State Court Records: March 2, 2000 PCRA Court Order (identified as "37" in the lower right hand corner).
The Respondents contend that Petitioner did not appeal the denial of PCRA relief. The state court records indicate that no appeal or any later petitions or pleadings were filed in the state system.
On April 19, 2004, a pro se habeas petition was filed in this Court. Habeas Petition [Docket Entry No. 1]. On July 8, 2004, at the direction of the Court, Petitioner re-submitted his habeas claims on a current § 2254 form. Revised Habeas Petition [Docket Entry No. 6]
Normally, under the prison mailbox rule, I accept the date on which Petitioner signs the habeas petition as the date of filing. However, since Mr. Lewis did not include a date on the signature line, and because accepting an earlier date in April 2004 would not change the fact that this petition is time-barred, I will use the actual date of filing.
As grounds for habeas relief, Petitioner presents the following issues:
1. "Sentencing statute had violates had violated the United States Constitution. [sic] The violation of my equal protection and due process clause[s]. I was sentence[d] to life without parole for a murder I didn't commit. State's sentencing statute require[s] someone to spend the rest of his or her life in prison regardless of the minority of that person's role in the commission of the principal's crime."
2. "Pennsylvania Felony Murder statute had also shows unconstitutional because of violations of my due process clause. The language violates the federal constitution because it subjects the accused to a severe prosecution regardless of the minority of the accused's role in the events that lead to the death of the victim. Because my co-defendant had killed someone to be in a gang and he acted on his own intent to kill someone, which I didn't know."
3. "In my post conviction relief act law is unconstitutional because it lead[s] to violation of equal protection due process. One of my co-defendants was granted a new trial because of illegally admitted evidence, but I did not get that same opportunity because previous counsel's failed to preserve the [issue] on appeal, and the P.C.R.A. statute precludes me from raising the issues at this point for want of jurisdiction, the end result is denial of my right to counsel."
4. "My conviction was obtained by a violation of the privilege against self-incrimination. During my arrest police already had information about the [person] who killed the store clerk. I had giving of a statement to question they already had to entrap me to a murder. I had no knowledge of why it happen until I got my transcript that reveal more of my violations had be violated by the police department."Revised Habeas Petition at pp. 9-10.
On October 25, 2004, the Respondents answered the habeas petition, arguing that it is time-barred under 28 U.S.C. § 2244(d)(1)(A). Commonwealth's Answer: Memorandum in Opposition to Habeas Petition at pp. 1-3.
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), 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 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 before me 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. Lewis' conviction became final.
In the instant case, Mr. Lewis' state conviction became final on October 23, 1999, when the time for seeking certiorari review in the United States Supreme Court (90 days) expired. See 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.").
Petitioner's habeas statute of limitations began on October 24, 1999, and absent any tolling, would have expired one year later.
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 habeas statute of limitations began on October 24, 1999, and continued to run until January 14, 2000, when he filed a petition for collateral relief in the PCRA forum. By January 14, 2000, approximately two and one-half months (80 days) of Petitioner's one year statutory period had expired. The statute of limitations period was tolled during the entire time period that Mr. Lewis' PCRA petition was pending, from January 14, 1999 through April 2, 2000, when his PCRA petition was dismissed and the time for filing an appeal to the Pennsylvania Superior Court had expired. See Schwartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (for § 2244's tolling provisions, "pending" includes the time for seeking discretionary review, whether or not discretionary review is sought.)
On April 3, 2000, the remainder of Petitioner's statutory period (285 days) began to run, and expired on or about January 13, 2001. The instant habeas petition was not filed for over three years beyond the statutory deadline. It is untimely and, thus, not subject to habeas review.
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).
Petitioner has not alleged, nor does the record before me support, a finding that the circumstances of this case present the "rare situation" which demands equitable tolling of the habeas statute. Therefore, Petitioner's untimely habeas petition is not subject to federal review.
RECOMMENDATION
For the reasons stated above, it is recommended that the Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, be DENIED AND DISMISSED AS TIME-BARRED. It is further recommended a finding be made that there is no probable cause to issue a certificate of appealability.