Opinion
Civil action. No. 05-5724.
March 31, 2006
REPORT AND RECOMMENDATION
Before the Court is a pro se petition for the issuance of a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Hector G. Oyola (alternatively "Oyola" or "petitioner"). He is currently incarcerated at the State Correctional Institution in Frackville, Pennsylvania ("SCI-Frackville"). For the reasons which follow, we RECOMMEND that the petition be DISMISSED as time-barred.
We note that petitioner is not currently a resident of this district in that his place of incarceration is at SCI-Frackville located in the Middle District of Pennsylvania. See Sweger v. Chesney, 294 F.3d 506, 510 (3d Cir. 2002) (acknowledging that SCI-Frackville is located in the Middle District); see also Dockins v. Pennsylvania Bd. of Probat. And Parole, 2004 WL 2406691, at *1 (E.D. Pa. Oct. 26, 2004) (citing 28 U.S.C. § 118(b)) (observing that Frackville is located in Schuylkill County which lies in the Middle District). Nonetheless, venue is proper here in that his current confinement is the result of his prosecution and conviction in Philadelphia County. See 28 U.S.C. § 2441(d).
PROCEDURAL HISTORY
Petitioner entered an open guilty plea in the Court of Common Pleas of Philadelphia to third degree murder and possession of an instrument of crime (PIC). See Hab. Pet. ¶¶ 1-5; Resp. to Hab. Pet. ¶ 2. On April 26, 2001, he was sentenced to twelve to forty (12-40) years in prison for the murder conviction and a concurrent term of two and a half (2 ½) to five (5) years in prison for the weapon offense. See Hab. Pet. ¶ 3; Resp. to Hab. Pet. ¶ 2. He did not file a direct appeal. Id.; see Hab. Pet. at 4-5.
The District Attorney of Philadelphia ("respondent") represents that Oyola completed a form (in triplicate) necessary for filing a petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. §§ 9541-46. See Resp. to Hab. Pet. ¶ 3. However, respondent further alleges that "[i]nstead of filling out the form in triplicate and sending the white sheet to the Philadelphia Court of Common Pleas, the pink sheet to the Philadelphia District Attorney's Office, and retaining the yellow sheet for his own records (as the form instructs), petitioner mailed all three sheets to the D.A.'s Office in April of 2002." Id.; see also (unfiled and undated) PCRA Pet. (in triplicate) (attached to Resp. to Hab. Pet.). Thus, respondent states that because "petitioner never filed the PCRA petition in the Court of Common Pleas, that court took no action on the petition." See Resp. to Hab. Pet. ¶ 3.
Under Pennsylvania law, a PCRA petition is "the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when [the PCRA] takes effect, including habeas corpus and coram nobis." 42 Pa. C.S. § 9542; see Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) ("By its own language, and by judicial decisions interpreting such language, the PCRA provides the sole means for obtaining state collateral relief.").
While Oyola claims that he filed a "State Writ of Habeas Corpus" (presumably meaning the aforementioned PCRA petition) in the Court of Common Pleas of Philadelphia which was "never replied to by the court," see Hab. Pet. ¶ 11(a)(1)-(6), there is no evidence in the record before the Court, including the state court record forwarded by the Clerk of Quarter Sessions of the Philadelphia Court of Common Pleas, that petitioner filed any petition after he was sentenced, and petitioner acknowledges that, at the time he filed his federal habeas petition, he did not "have any petition or appeal . . . pending in any court, either state or federal, as to the judgment under attack," see id. ¶ 14.
This Court's civil docket reflects that the Clerk of Court received petitioner's federal habeas petition on October 28, 2005. The District Attorney thereafter filed a Response to the petition requesting that the Court dismiss the petition on the grounds that it is time-barred, and in any event, petitioner's claims are procedurally defaulted. See Respondent's Br. at 4-6.
DISCUSSION
Section 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which amended 28 U.S.C. § 2244, imposes a one-year period of limitation on applications for writs of habeas corpus by persons in state custody. See 28 U.S.C. § 2244(d)(1); Pace v. DiGuglielmo, 125 S. Ct. 1807, 1810 (2005). Pursuant to the AEDPA, the limitation period begins to 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.28 U.S.C. § 2244(d)(1). Thus, under § 2244, the one-year limitation period during which a habeas petition must be filed begins to run, with certain statutory exceptions which do not apply here, upon completion of direct review of the judgment of the state courts. See id.
Petitioner's judgment of conviction became final on May 26, 2001, when the time for filing a direct appeal in the Superior Court of Pennsylvania expired. See Pa. R. App. P. 903(a) (notices of appeal must be filed within 30 days). Consequently, petitioner had one year after that date, plus any time during which the period of limitation was tolled, to file a § 2254 petition. See Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003), cert. denied, 124 S. Ct. 317 (2003); Swartz v. Meyers, 204 F.3d 417, 419-20 (3d Cir. 2000); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Oyola was sentenced on April 26, 2001, see Hab. Pet. ¶ 3; Resp. to Hab. Pet. ¶ 2, and he did not file a direct appeal,id.; see Hab. Pet. at 4-5.
Petitioner did not file his federal habeas petition until, at the earliest, October 24, 2005, about four years and five months after the judgment of sentence became final, andwell over three years after the AEDPA's period of limitationexpired. Under this circumstance it was not timely filed. See Miller, 145 F.3d at 617-18; Burns, 134 F.3d at 111. "The statute of limitations for federal habeas corpus petitions is subject to two tolling exceptions: (1) statutory tolling during the time a `properly filed' application for state post-conviction review is pending in state court and (2) equitable tolling, a judicially crafted exception." Merritt, 326 F.3d at 161 (citingJones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999)). With respect to statutory tolling, § 2244(d)(2) provides in relevant part 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) (emphasis added); see Pace, 125 S. Ct. at 1810 (quoting § 2244(d)(2)).
In Burns, 134 F.3d at 113, the Court of Appeals for the Third Circuit held that a pro se prisoner's federal habeas petition is deemed "filed" at the moment he delivers it to prison officials for mailing to the district court. Here, petitioner signed his habeas petition on October 24, 2005. See Hab. Pet. at 11. Therefore, he could not have delivered the petition any earlier than that date.
In that Oyola did not have a "properly filed" PCRA petition "pending" during the AEDPA's one-year period of limitation, the period was not tolled under 28 U.S.C. § 2244(d)(2). See, e.g., Merritt, 326 F.3d at 165-66 (PCRA petition which is not "properly filed" does not toll the statute of limitations for a federal habeas petition); Brown v. Shannon, 322 F.3d 768, 775 n. 5 (3d Cir. Mar. 17, 2003) (same). As explained above, see supra note 3, while Oyola claims that he filed a state petition which was "never replied to by the court," see Hab. Pet. ¶ 11(a)(1)-(6); see also Petr.'s Response/Objection filed Jan. 20, 2006 (Doc. No. 5) at 2, there is no evidence in the record before the Court, including the state court record forwarded by the Clerk of Quarter Sessions of the Philadelphia Court of Common Pleas, that petitioner filed any state court petition after he was sentenced. Indeed, petitioner fails to point to or even allege the existence of any such evidence. Moreover, he acknowledges that, at the time he filed his federal habeas petition, he did not "have any petition or appeal . . . pending in any court, either state or federal, as to the judgment under attack," see Hab. Pet. ¶ 14.
In Merritt, the Third Circuit reiterated "the two general requirements for equitable tolling: (1) that `the petitioner has in some extraordinary way been prevented from asserting his or her rights;' and (2) that the petitioner has shown that `he or she exercised reasonable diligence in investigating and bringing [the] claims.'" Merritt, 326 F.3d at 168 (citing Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001)) (emphasis added). Here, as respondent argues, see Resp. to Hab. Pet. at 3, "[c]ountless prisoners have managed to file PCRA petitions properly," and petitioner "has failed to offer any [sufficient] explanation for why it would be unfair to expect him to do so."
Oyola requests that his petition not be found time-barred "because [he] does not know the law." See Petr.'s Response/Objection filed Jan. 20, 2006, at 2 ¶ 4 ("surely this Honorable Court will not agree that petitioner is time-barred — because petitioner does not know the law") (emphasis in original). However, to the extent petitioner alleges lack of understanding or knowledge of the law or that he required assistance in filing his petition, see id. ("[p]etitioner must depend on jail-house lawyers for help"), that claim does not entitle him to equitable tolling. See Jones, 195 F.3d at 160 (finding equitable tolling not warranted due to petitioner's lack of understanding of AEDPA's requirements); School Dist. of Allentown v. Marshall, 657 F.2d 16, 21 (3d Cir. 1981) ("[i]gnorance of the law is not enough to invoke equitable tolling").
In addition, attorney error is not an appropriate basis to invoke equitable tolling here. See Hab. Pet. ¶ 3 ("the reason there was no direct appeal filed in petitioner's case was because his attorney failed to file the appeal"). "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.
However, even assuming that extraordinary circumstances prevented petitioner from asserting his rights, he fails to allege circumstances indicating that he exercised reasonable diligence in pursuing his claims. See, e.g., Pace, 125 S. Ct. at 1815; Schlueter v. Varner, 384 F.3d 69, 78 (3d Cir. 2004), cert. denied, 125 S. Ct. 2261 (2005). It cannot be said that he exercised "reasonable diligence" in pursuing his claims, when he fails to even allege, let alone demonstrate, that he took any action (such as inquiring about the status or resolution of his petition) after attempting to "file" a PCRA petition. See Merritt, 326 F.3d at 168 (citingFahy, 240 F.3d at 244).
It is noted that petitioner fails to even allege a date that he attempted to file a state post-conviction petition. However, as explained above, respondent represents that in April 2002 Oyola mailed to the District Attorney's Office copies of his improperly filed PCRA petition, see Resp. to Hab. Pet. ¶ 3, almost one year after his judgment of sentence became final and the AEDPA's period of limitation expired. Thus, petitioner letat least three and a half (3 ½) years pass (between the time he mailed his PCRA petition and October 24, 2005, when he filed his federal habeas petition) without taking any action regarding the status of his PCRA petition. Of course, if petitioner attempted to file his PCRA petition after May of 2002, when the AEDPA's period of limitation expired, there would be no tolling effect even if the petition were "properly filed." See, e.g., Schlueter, 384 F.3d at 79 (observing that petitions for state relief pursued after the AEDPA's period of limitation had expired could not have a tolling effect); Lomazoff v. Walters, 1999 WL 744331, at *3 (E.D. Pa. Sep. 23, 1999) (same). In any event, petitioner fails to allege that he exercised "reasonable diligence" in this case. See Merritt, 326 F.3d at 168 (citingFahy, 240 F.3d at 244).
Since petitioner fails to show that he has "in some extraordinary way" been prevented from asserting his rights, and he fails to allege that he "exercised reasonable diligence" in pursuing his claims, equitable tolling is not warranted. See Pace, 125 S. Ct. at 1815; Brown, 322 F.3d at 776; Jones, 195 F.3d at 159. "[T]he `sparing' doctrine of equitable tolling" should not be invoked under the particular circumstances in this case. See Robinson v. Johnson, 313 F.3d 128, 143 (3d Cir. 2002) (quoting Jones, 195 F.3d at 159), cert. denied, 540 U.S. 826 (2003); see also Brown, 322 F.3d at 774. Consequently, the petition should be dismissed as time-barred.See Miller, 145 F.3d at 617-18; Burns, 134 F.3d at 111.
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue at the time a final order denying a habeas petition is entered. When a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, a COA may not issue unless the prisoner demonstrates that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 123 S. Ct. 1029, 1046 (2003) (Scalia, J., concurring) (observing that Slack held "that a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling").
"Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack, 529 U.S. at 484. Here, for the reasons set forth above and in light of the aforementioned decisions invoking the AEDPA's period of limitation as a procedural bar, a reasonable jurist could not conclude that the Court would be incorrect in dismissing the present petition as time-barred. See Slack, 529 U.S. at 484; see, e.g., Woods v. Kearney, 215 F. Supp.2d 458, 464 (D. Del. 2002) (finding that COA should not issue where habeas petition was barred by the one-year period of limitation under § 2244(d)(1)). Accordingly, a COA should not issue. Therefore, given our discussion above, we make the following:
RECOMMENDATION
AND NOW, this 31st day of March, 2006, upon consideration of the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 and the Response to the habeas petition, it is RECOMMENDED that the habeas petition be DISMISSED as time-barred and that a CERTIFICATE OF APPEALABILITY should NOT ISSUE.