Opinion
CIVIL ACTION No. 03-CV-3518
March 16, 2004
REPORT AND RECOMMENDATION
Before this court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, Reginald Mays, is a state prisoner currently incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania. For the reasons that follow, it is recommended that this petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On February 6, 1996, following a jury trial in the Court of Common Pleas of Philadelphia County, Mays was convicted of four counts of robbery, possession of an instrument of crime, criminal conspiracy, and a violation of the Uniform Firearms Act. On April 24, 1996, Mays was sentenced to an aggregate term often (10) to twenty (20) years' imprisonment. The Superior Court of Pennsylvania affirmed the judgment of sentence on April 6, 1998. On December 18, 1998, Mays filed an untimely pro se petition for allowance of appeal in the Supreme Court of Pennsylvania in which he asserted that appellate counsel was ineffective for failing to file a timely appeal. This request was denied on May 11, 1999.
On April 5, 1999, while his request to proceed in the Pennsylvania Supreme Court nunc pro tune was still pending, Mays filed a petition for a writ of habeas corpus in this court. This petition was summarily dismissed for failure to exhaust state remedies. Mays v. Frank, No. 99-CV-1768 (J. Newcomer, June 4, 1999).
On April 8, 1999, Mays filed a petition for collateral review pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq. In this petition, Mays asserted three claims of ineffective assistance of counsel: 1) that appellate counsel was ineffective for failing to challenge the trial court's denial of his motion to suppress the photo identification of Lawrence Simms; 2) that trial counsel was ineffective for introducing evidence of Mays's prior criminal record; and 3) that trial counsel was ineffective for failing to object to prosecutorial misconduct in closing argument.
Mays's PCRA petition was denied on July 24, 2001. The Superior Court affirmed the order of the PCRA court on August 1, 2002. Commonwealth v. Mays, 809 A.2d 960 (Pa.Super. 2002) (table). Allocator was denied on March 26, 2003. Commonwealth v. Mays, 820 A.2d 704 (Pa. 2003) (table).
Mays filed the instant petition for a writ of habeas corpus, dated May 12, 2003, on May 14, 2003. In his petition, Mays raises the following claims of ineffective assistance of counsel for failing to: 1) challenge the photographic evidence; 2) challenge the photographic array that permitted the jury to infer that Mays had a prior criminal record; and 3) object to prosecutorial misconduct during closing argument. Mays also asserts that the evidence was insufficient to sustain the verdict, that the verdict was against the weight of the evidence, and that suggestive identification procedures have led to the conviction of an innocent man. On March 1, 2004, the Commonwealth filed its response asserting that the petition is untimely.
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.
Section 2244 further provides that "[t]he 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)(2).
Mays's judgment of sentence became final on May 6, 1998, thirty (30) days after the Superior Court of Pennsylvania affirmed the judgment of sentence because Mays failed to file a timely petition for allocatur. 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). Thus, Mays was required to file his habeas petition on or before May 5, 1999.
The earliest date the instant petition can be deemed filed is May 12, 2003, the date on which Mays's petition was signed. Burns v. Morton, 134 F.3d 109, 113 ("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, this petition is untimely and must be dismissed unless Mays can establish that the limitations period was tolled through May 12, 2003.
The limitations period may be tolled during the time a state collateral proceeding is pending if the collateral petition was properly filed under state law. 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).
As set forth above, the limitations period began to run on May 6, 1998. It was tolled 337 days later, on April 8, 1999, when Mays filed his PCRA petition. The order of the PCRA court dismissing the PCRA petition became final on March 26, 2003, when allocatur was denied by the Pennsylvania Supreme Court. Thus, the remaining 28 days of the federal limitations period began to run on that date requiring Mays to file for federal habeas relief on or before April 23, 2003.
Mays's nunc pro tunc petition for allocatur does not further toll the limitations period because it was not properly filed. See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (a "properly filed" application is in compliance with the applicable laws and rules governing filings, including restrictions on time limits). See also Douglas v. Horn, 2004 U.S. App. LEXIS 1968 * 14 (holding that the Third Circuit "did not intend thatNara be applied so broadly that by filing a nunc pro tunc petition for leave to appeal a petitioner could obtain further tolling. . ."). Mays did not file his petition until May 12, 2003, after the federal limitations period had expired.
This court must also conclude that Mays does not satisfy any of the exceptions to the period of limitations set forth in § 2244(d)(1)(B)-(D). Mays 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 predicates upon which his claims are based concern events that took place during his trial proceedings and were discoverable in the exercise of due diligence.
Finally, Mays 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. See 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.)
Having determined that this petition is untimely and fails to meet any exception to the limitations period of § 2244(d)(1), this court makes the following:
RECOMMENDATION
AND NOW, this day of March, 2004, 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.