Opinion
Civil Action No. 04-2374.
August 18, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254. The Petitioner, Anthony Page ("Petitioner"), is currently incarcerated at the State Correctional Institution, Mahanoy, located in Frackville, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, and all attachments to those pleadings.
Petitioner, when he was twenty years old, was tried by a jury before the Honorable Lawrence A. Brown in the Court of Common Pleas of Montgomery County, and was convicted on October 15, 1986, of second degree murder, robbery, criminal conspiracy to commit robbery, and unauthorized use of a motor vehicle. Petitioner's post-trial motions were denied on May 15, 1987, and on August 26, 1987, Petitioner was sentenced to life imprisonment.
Petitioner filed a direct appeal with the Superior Court of Pennsylvania on September 29, 1987, raising the following issues: (1) whether the trial court erred in failing to give the legal definition of the phrase "in the course of committing a theft"; (2) whether the evidence was sufficient to convict appellant of robbery; (3) whether the evidence was sufficient to convict appellant of conspiracy to commit robbery; (4) whether the evidence was sufficient to convict appellant of murder of the second degree; and (5) whether the verdict was against the weight of the evidence. The Superior Court affirmed the judgments of sentence on July 29, 1988. See Resp., Ex. C; Commonwealth v. Page, 548 A.2d 642 (Pa.Super. 1988) (table). Petitioner's petition for allowance of appeal before the Pennsylvania Supreme Court was denied on April 14, 1989. Commonwealth v. Page, 559 A.2d 36 (Pa. 1989) (table).
Petitioner filed a pro se petition under the Pennsylvania Post Conviction Relief Act ("PCRA") on April 14, 1999. 42 Pa. C.S.A. § 9541, et seq. Counsel was appointed, and filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), advising Petitioner and the PCRA court that there was no merit to the issues in Petitioner's PCRA petition. After reviewing the record, the PCRA court granted counsel's request to withdraw, and dismissed the petition without a hearing on May 17, 1999. See Resp., Ex. D. On July 17, 2000, the Superior Court affirmed the dismissal of the PCRA petition. See Resp., Ex. E. The Pennsylvania Supreme Court denied the petition for allowance of appeal on January 23, 2001.
Petitioner filed a second pro se PCRA petition on May 22, 2002, and on September 12, 2002, the PCRA court dismissed this petition without a hearing because it was untimely and meritless. On June 16, 2003, the Superior Court affirmed the dismissal of the second PCRA petition. See Resp., Ex. H; Commonwealth v. Page, 830 A.2d 1051 (Pa.Super. 2003) (table). On October 23, 2003, the Pennsylvania Supreme Court denied the petition for allowance of appeal. Commonwealth v. Page, 834 A.2d 1142 (Pa. 2003) (table).
Petitioner filed the instant Petition on June 23, 2004. On June 8, 2004, this case was referred by the Honorable James T. Giles for preparation of a Report and Recommendation. The Response was filed on August 9, 2004, and on August 17, 2004, a letter Reply was received from Petitioner. The Petition before this Court seeks a determination of the following issues: (1) the post-conviction court erred when it denied Petitioner relief in the form of a new trial or an evidentiary hearing as a result of the newly-discovered or after-discovered evidence consisting of an affidavit regarding statements by the prosecutor after trial; (2) the post-conviction court erred when it denied Petitioner relief in the form of a new trial or evidentiary hearing as a result of newly discovered or after-discovered evidence consisting of two affidavits regarding law enforcement investigation of the homicide and/or all prior counsel ineffectiveness causing denial of Petitioner's rights and his conviction; (3) appellate counsel failed to provide effective assistance of counsel in failing to surrender notes of testimony, and other discovery materials to which Petitioner is entitled while using deceptive tactics which caused significant bias, delay, and prejudice against Petitioner; (4) the trial court gave an erroneous charge, committing error of the type which added substantial effect, influence or confusion upon the jurors warranting the grant of a new trial; (5) Petitioner's conviction was the result of a fundamentally unfair proceeding and thereby a manifestly unjust decision due to error in the form of an abuse of discretion, prosecutorial misconduct, and/or ineffective assistance of counsel rising to the level of a miscarriage of justice; and (6) the prosecutor in his closing argument committed prosecutorial misconduct by falsely and unjustly labeling Petitioner a pimp and a killer and other prejudicial remarks that were inflammatory and misleading. Respondents deny that Petitioner is entitled to relief, and contend that the Petition is time-barred and that Petitioner's claims are procedurally defaulted without excuse and are therefore unreviewable. II. DISCUSSION.
Petitioner's case must be decided pursuant to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996. Pub.L. 104-132, 110 Stat. 1214. Section 104(2) of the AEDPA amended 42 U.S.C. section 2254, and requires that federal courts give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C. section 2244 to require that:
(d)(1) 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 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). If direct review of a criminal conviction ended before the AEDPA's effective date, the one-year limitations period begins to run on the effective date of the AEDPA. 28 U.S.C. § 2244(d)(1)(A); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). In this case, Petitioner's convictions became final on April 14, 1989, well before the AEDPA's effective date. Thus, Petitioner's deadline for timely filing a federal habeas petition was April 23, 1997. The instant Petition was filed on June 23, 2004, over seven years late, and it is timebarred.
There is an exception in the AEDPA statute for "[t]he time during which a properly filed application for State postconviction 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). Petitioner's first PCRA petition was filed on April 14, 1999, over two years after Petitioner's deadline for filing a habeas petition elapsed. Thus, neither of the PCRA petitions tolled the statute of limitations period.
"[E]quitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.'" Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (quoting Shendock v. Dir., Ofc. of Workers' Comp. Programs, 893 F.2d 1458, 1462-1464 (3d Cir.),cert. denied, 498 U.S. 826 (1990)). For equitable tolling to apply, the Petitioner "must show that he . . . `exercised reasonable diligence in investigating and bringing [his] claims.' Mere excusable neglect is not sufficient." Id. at 618-619 (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) and citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). The United States Court of Appeals for the Third Circuit has set forth the following three circumstances in which equitable tolling is permitted: (1) if the [Respondent] has actively misled the [Petitioner]; (2) if the [Petitioner] has in some extraordinary way been prevented from asserting his rights, or (3) if the [Petitioner] has timely asserted his rights mistakenly in the wrong forum. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001) (citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted)).
Arguably, Petitioner might be able to claim that the second circumstance for equitable tolling applies to his case, or that he has in some extraordinary way been prevented from asserting his rights. Petitioner makes no showing, however, that he was prevented from filling out the standard habeas form which is freely available at all Pennsylvania correctional institutions, and from sending the form to this Court to protect his rights in both the state and federal courts within one year of his sentence becoming final. Petitioner also does not argue that his circumstances during the one-year limitations period placed any unusual encumbrance on him with respect to filing a habeas Petition. Because Petitioner's actions demonstrate a lack of reasonable diligence in investigating and bringing his claims before this Court, this is one of those situations where none of the factors for equitable tolling have been met.
Petitioner indicates in his letter Reply that he had no records from which he could file an effective appeal and that certain exceptions apply which exempted him from the PCRA time limit. Petitioner contends that he has been diligently attempting to obtain the necessary documents to review his case since 1989 by retaining counsel, filing numerous complaints by way of correspondence to the presiding state court Judge, and pro se filings with the state court Clerk of Courts, yet he was unable to obtain any of his records, and his counsel avoided any correspondence or contact with him, which left him unaware of any issues related to his case. See Reply, p. 3.
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2251 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.