Opinion
Civil Action No. 04-3244.
August 31, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution located in Chester, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On January 22, 1999, petitioner was arrested and charged with driving under the influence of alcohol (DUI) and resisting arrest. Petitioner pled guilty to the DUI on July 29, 1999, before the Honorable John E. Backenstoe. On September 3, 1999, petitioner was sentenced to thirty days to twenty-four months in prison, with credit to be given for the time he had previously spent in custody. Petitioner did not appeal his conviction or file any timely posttrial motions.
On June 22, 2001, petitioner was convicted of DUI and aggravated assault in Northampton County. He was subsequently sentenced to sixty to one-hundred twenty months in prison. Petitioner failed to appeal this conviction as well, and did not file any motions for postconviction relief.
Petitioner subsequently filed a Petition for Credit Time. On April 9, 2003, Judge Backenstoe held a hearing on the matter, in which he determined that the sentence petitioner was serving at Lehigh County Prison was to run concurrently with that subsequently imposed by Northampton County. The court added that petitioner was to be given credit on account of all time served.
Petitioner then petitioned the Commonwealth court for review, alleging that respondent had erred in failing to provide the same amount of credit to petitioner's Northampton County sentence as it had to his Lehigh County sentence. On October 22, 2003, the Commonwealth court dismissed the petition, stating that the law does not require the Department of Corrections to award double credit to a subsequent sentence for an unrelated offense. See Taglienti v. Department of Corrections of the Commonwealth of Pennsylvania, 806 A.2d 988 (Pa.Cmwlth. 2002).
On July 9, 2004, petitioner filed the instant petition for Writ of Habeas Corpus, alleging the following claims:
(1) The state court denied petitioner his constitutional right to due process of law, in that petitioner did not receive the proper credit for time served; and
(2) The state court's failure to properly credit petitioner for time served amounts to an unreasonable application of clearly established federal law.
Respondent retorts that the petition is untimely, and thus petitioner is not entitled to federal habeas review or relief. In the alternative, respondent claims that petitioner's claims are procedurally defaulted, as they never have been and cannot now be raised in the state courts.
II. TIMELINESS
Notwithstanding petitioner's allegations of substantive grounds for relief, one procedural obstacle precludes federal review of those claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:
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;28 U.S.C. § 2244(d)(1) (1996). If direct review of a criminal conviction ended prior to the statute's effective date, then under Third Circuit precedent, a petitioner has a one-year grace period subsequent to the effective date to commence a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3rd Cir. 1998).
The AEDPA also sets forth three other potential starting points for the running of the statute of limitations, as follows:
(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 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) (1996). As petitioner has not alleged and the court cannot glean any facts indicating that any of these other starting points should be used, we do not consider them.
The statute, however, creates a tolling exception, which notes 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. § 2254(d)(2). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998). If a petitioner files an out-of-time application and the state court dismisses it as time-barred, then it is not deemed to be a "properly filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3rd Cir. 2003).
In the case at bar, petitioner's first conviction became final on October 3, 1999. Thus, he had until October 3, 2000, to file a petition for Writ of Habeas Corpus. Petitioner's second conviction became final on July 22, 2001, allowing him to file a timely petition for Writ of Habeas Corpus on or before July 22, 2002. However, petitioner did not file the instant petition until July 9, 2004, well after both statutes of limitation had run.
As previously noted, petitioner failed to make any motion for post-conviction relief with regard to either of his convictions, and thus neither statute of limitations was ever tolled. As such, this court has no choice but to dismiss the request for relief without consideration on the merits.
One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling. Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3rd Cir. 1998). Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Id. (quotation 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 (internal quotation omitted). The Third Circuit has set forth three circumstances permitting equitable tolling: (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 (3rd Cir. 1999) (internal quotations 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 (3rd Cir. 2001), cert. denied, 122 S. Ct. 323 (2001) (citing cases). To otherwise apply equity would "lose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
Though the District court has the ability to review the substantive issues raised in a habeas corpus petition when applying the statute of limitations would unfairly prejudice the petitioner, the petitioner must show more than excusable neglect in order for the court to do so. Rather, the petitioner must prove that he exercised reasonable diligence but that for some extraordinary reason, he was prevented from asserting his rights.See Miller, 145 F.3d at 618-19. Petitioner has failed to meet this burden. Consequently, we decline to exercise our equitable tolling powers, and we dismiss his entire petition.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.