Opinion
CIVIL ACTION 03-CV-4828
February 26, 2004
REPORT AND RECOMMENDATION
Before the court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, Lonnie Mosley, is currently incarcerated at the State Correctional Institution at Somerset, Pennsylvania. For the reasons set forth below, this court recommends that the petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On June 23, 1995, in the Court of Common Pleas of Philadelphia County, Mosley was convicted of second-degree murder, robbery, and possession of an instrument of crime ("PIC"). Mosely filed a timely direct appeal from judgment of sentence. In a memorandum opinion filed February 27, 1998, the Superior Court of Pennsylvania vacated the robbery sentence and affirmed the trial court in all other respects. Commonwealth v. Mosley, 714 A.2d 1087 (Pa.Super. 1998) (table). Mosley did not seek permission to appeal in the Supreme Court of Pennsylvania.
On May 3, 1999, Mosley filed a petition for post-conviction collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541 et seq. The PCRA court dismissed the petition for lack of jurisdiction because it was untimely. Mosley appealed the order of the PCRA court asserting that his petition was timely, and alternatively, that it fit within the timeliness exception of 42 Pa. C.S. § 9545(b)(1)(ii). On January 15, 2003, the Superior Court of Pennsylvania affirmed the order of the PCRA court. Commonwealth v. Mosley, 819 A.2d 116 (Pa.Super. 2003) (table). Mosley's petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on July 1, 2003. Commonwealth v. Mosley, No. 828 A.2d 350 (Pa. 2003).
This provision provides that a PCRA petition need not be filed within one year of the date that the judgment becomes final if the petition alleges, and the petitioner proves, that: "the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence." 42 Pa. C.S. § 9545(b)(1)(ii). The Superior Court rejected Mosley's claim that counsel's failure to file an appeal to the Supreme Court of Pennsylvania was after-discovered evidence. Commonwealth v. Mosley, No. 95 1 EDA 2002 (Pa.Super. 2002) slip op. at 4.
On August 18, 2003, Mosley filed the instant petition for a writ of habeas corpus. Mosley asserts that: 1) the prosecutor committed misconduct by commenting on his right not to testify; 2) the prosecutor committed misconduct by expressing his personal opinion about the evidence and the presumption of innocence; 3) trial counsel was ineffective for failing to file a petition for permission to appeal in the Supreme Court of Pennsylvania; and 4) he was denied due process. The Commonwealth has responded that the petition is untimely and should be dismissed.
DISCUSSION
Federal habeas review is precluded where the petitioner does not satisfy the applicable period of limitations. 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).
Mosley's judgment of sentence became final on March 29, 1998, thirty (30) days after his judgment of sentence was affirmed by the Superior Court because he did not seek allocatur. 28 U.S.C. § 2244 (d)(1)(A). See Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001) (judgment final after the expiration of the time for seeking direct review or the expiration of the time for seeking such review). Under these circumstances, Mosley was required to file the instant petition on or before March 28, 1999. As set forth above, the instant petition was not filed until August, 18, 2003, more than four years after the expiration of the limitations period. Thus, as asserted by the Commonwealth, Mosley's habeas petition is untimely.
However, the limitations period can be statutorily tolled when a petition for collateral relief has been "submitted according to the state's procedural requirements, such as the rules governing time and place of filing." Id. (quoting Morris v. Horn, 187 F.3d 333, 338 (3d Cir. 1999). Thus, Mosley would have been required to file his PCRA petition prior to March 29, 1999 in order to toll the running of the limitations period. Mosley did not file his PCRA petition until May 3, 1999, after the expiration of the limitations period. Under these circumstances, his collateral petition could not extend the time in which he could file for federal habeas relief as the limitations period had already expired.
Moreover, the state court concluded that Mosley's PCRA petition was untimely as a matter of Pennsylvania law. Where the state court has determined that the state procedural requirements for filing a PCRA petition have not been met, the petition is not properly filed, and consequently does not trigger the tolling provision. Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir. 2003) (an untimely PCRA petition does not toll the federal limitations period, even where the petitioner sought to pursue his PCRA petition under a statutory exception to the PCRA's time bar): see also Fahey, 240 F.3d at 243-44:Morris v. Horn, 187 F.3d 333, 338 (3d Cir. 1999) (state post-conviction petition dismissed on grounds of untimeliness does not toll statute of limitations).
This court must also conclude that Mosley does not satisfy any of the exceptions to the period of limitations set forth in § 2244(d)(1)(B)-(D). Mosley 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, Mosley 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.) Mosley asserts trial counsel's failure to file for permission to appeal in the Pennsylvania Supreme Court as cause for the equitable tolling of the federal habeas proceedings. However, this delay relates to the timeliness of the state proceedings and was rejected by the state courts. Mosley does not assert that trial counsel was consulted on the filing of a federal habeas petition, nor has he established that he pursued his state claims with due diligence. In a non-capital case, 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.
Similarly, PCRA counsel's advice to Mosley that he had one year from the date the Supreme Court of Pennsylvania denied allocatur to file a petition for a writ of habeas corpus, while erroneous in this case, does not provide grounds for equitable tolling. See Johnson v. Hendricks, 314 F.3d 159, 162-63 (3d Cir. 2002) (even though petitioner received erroneous advise, he was not prevented in any extraordinary way from asserting his rights).
Accordingly, this court makes the following:
RECOMMENDATION
AND NOW, this day of February, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. IT IS FURTHER RECOMMENDED that there is no probable cause to issue a certificate of appealability.