Opinion
CIVIL ACTION NO. 03-6765
April 21, 2004
REPORT AND RECOMMENDATION
Currently pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated in the State Correctional Institution at Graterford, Pennsylvania. For the reasons which follow, the Court recommends that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
Following a jury trial before the Honorable David N. Savitt of the Philadelphia Count Court of Common Pleas, petitioner was convicted, on October 17, 1985 of first degree murder and possession of an instrument of crime. Judge Savitt, finding insufficient evidence of aggravating circumstances, directed the jury to enter a sentence of life imprisonment on the murder conviction and he was sentenced to a concurrent term of one to two years imprisonment on the weapons charge.
Petitioner filed a direct appeal and on April 16, 1987, the Pennsylvania Superior Court issued a decision affirming his conviction. Petitioner did not request allocatur review from the Pennsylvania Supreme Court.
On September 29, 1987, petitioner filed his first petition for collateral relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541, et seq. (repealed), ("PCHA"). He claimed that appellate counsel was ineffective for failing to argue that the trial court erred in refusing to give a jury instruction regarding alibi evidence. After counsel was appointed his petition was denied without a hearing on May 25, 1988. Petitioner appealed and on June 14, 1989, the Pennsylvania Superior Court issued a published opinion upholding the denial, finding that the jury instruction given by the trial court was proper without the additional language requested by defense counsel and appellate counsel was therefore not ineffective. Commonwealth v. Payne, 559 A.2d 951 (Pa.Super. 1989). On December 22, 1993, petitioner filed a second PCHA petition for collateral relief, which the Superior Court dismissed as previously litigated under Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988), on January 27, 1994. Petitioner did not seek appellate review.
Petitioner claims that he filed this petition on June 15, 1987, but that "suspiciously, petitioner's PCHA petition was not filed by the Court until September 29, 1987". (Petitioner's memorandum of law at p. 13). However, regardless of the filing date, this petition was considered on its merits and was not determined to be time barred by the state court.
Petitioner alleges that he filed an appeal on February 14, 1994 but was informed that it might have been lost in the mail and advised to file again nunc pro tunc. However, he claims that he never did so because he was placed in segregated confinement for 55 months with five institutional transfers which caused records and transcripts to be lost. He claims that after recovering his records and filing his appeal nunc pro tunc it was determined to be a third petition for collateral relief and was dismissed as time barred by the Superior Court on December 11, 2002.
Petitioner filed his third petition for collateral relief on December 14, 2001, this time pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9545 et seq. ("PCRA"). The petition was dismissed as untimely on February 12, 2002 and on December 11, 2002, the Pennsylvania Superior Court upheld the dismissal. Commonwealth v. Payne, 817 A.2d 1183 (Pa.Super. 2002) (Table). Petitioner did not seek review from the Pennsylvania Supreme Court.
The Court considered petitioner's argument that this was actually a nunc pro tunc appeal of the denial of his second PCHA petition which was never docketed. However the Court noted that he had been made aware of his failure to file an appeal in June 1994, but waited seven and a half years to file nunc pro tunc. See memorandum opinion dated December 11, 2002.
On December 10, 2003, petitioner filed the instant Petition for Writ of Habeas Corpus, setting forth the following claims:
A pro se petitioner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court.Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). Because petitioner executed his petition on December 10, 2003, we will presume, for purposes of this matter that he handed it to prison officials on the same day.
1. The conviction was obtained by the Commonwealth's unlawful use of evidence obtained pursuant to an unlawful arrest without a warrant;
2. The prosecution knowingly used a perjured in-court identification;
3. The prosecution concealed exculpatory evidence and witnesses;
4. Petitioner was denied effective assistance of counsel at all stages and counsel conspired with the Commonwealth;
5. Ineffective assistance of counsel for ignoring petitioner and failing to call alibi witnesses.
The Commonwealth responds that the entire petition is time-barred and must therefore be dismissed.
II. TIMELINESS
Notwithstanding petitioner's allegation 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 prisoner has a one-year grace period subsequent to the effective date of April 24, 1996 to commence a habeas action. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
The statute 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 the 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). As the petition does not allege any facts which indicate that any of these other starting points should be used, the Court does 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. § 2244 (d)(2). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing time and place of filing."Lovaszv. Vaughn, 134 F.3d 146, 148 (3d 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 (3d Cir. 2003).
In the case at bar, petitioner's conviction became final on May 16, 1987, thirty days after the Superior Court affirmed his conviction on April 16, 1987. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court). As these events occurred prior to the effective date of the AEDPA, petitioner received a grace period of one year, starting on April 24, 1996, the effective date of the Act, giving him until April 24, 1997 to file a federal petition for writ of habeas corpus. He failed to do so, however, until December 10, 2003, over six and a half years too late. While petitioner filed three petitions for collateral relief, none of them acted to toll the one year grace period. The first two PCHA petitions were both pending prior to the effective date of the AEDPA and therefore were prior to the beginning of petitioner's one year grace period. Finally, petitioner's PCRA petition filed on December 14, 2001 was deemed untimely by the State Court and therefore does not act to toll the limitations period as it was not a "properly-filed application". See Merritt v. Blaine, 326 F.2d at 167-168. In addition, the PCRA petition was filed well after petitioner's time to file for federal habeas relief had already expired. As petitioner failed to seek habeas relief in an expedient manner, we must deem the instant petition untimely.
Under Pa. R. App. P. 1113, a petition seeking allocatur must be filed within 30 days after the entry of the order from the Superior Court.
One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling, which is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair.". Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (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 (3d Cir. 1999) (internal quotations omitted); see also Brown v. Shannon, 322 F.3d 768 (3d Cir.), cert. denied, 123 S.Ct. 2617 (2003). "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 (3d Cir.), cert. denied, 534 U.S. 944, 122 S.Ct. 323 (2001) (citing cases).
Petitioner has submitted an affidavit of "assistant inmate-paralegal", Thomas J. Moore, stating that he assisted petitioner with his case starting in September of 1993 until he was transferred to a different correctional institution in December of 1994, at which time he had petitioner's case records and transcripts in his possession. He states that he was not able to return them to petitioner until February 2001, after he encountered petitioner during a chance meeting in Graterford in January of 2001. (Petitioner's Exhibit M). However, the fact that Mr. Moore had petitioner's transcripts fails to demonstrate the extraordinary circumstances necessary for equitable tolling. A petitioner need not have his trial transcript to file a petition for federal habeas relief. White v. Shannon, 2003 WL21771723 (E.D. Pa.) (Shapiro, S.J.) (stating "it is not required that a petitioner have a complete trial record when filing a state PCRA or a federal habeas claim"); See also. Brown v. Shannon, 322 F.3d 768 (3d Cir.), cert. denied, ___ U.S. ___ 123 S.Ct. 2617, 156 L.Ed.2d 637 (2003), (holding that there were not extraordinary circumstances sufficient to justify equitable tolling despite the fact that the petitioner's attorney was unable to obtain the trial transcript, since these circumstances did not prevent the petitioner from filing "a basic pro se habeas petition."). Petitioner has not demonstrated that he exercised "reasonable diligence" to obtain the transcripts or to pursue his claim. He has failed to demonstrate that he made any attempts to locate his records by writing to Mr. Moore or that he ever requested the transcripts from the Commonwealth. In addition, he has not identified any reason why he could not file a habeas petition and amend it later after obtaining his records. See Robinson v. Johnson, 313 F.3d 128, 143 (3d Cir. 2002) (holding that petitioner did not exercise reasonable diligence in bringing claim to justify equitable tolling, noting that petitioner "did not seek to file a timely petition and then clarify it once he had access to his materials"); See also. Holmes v. Vaughn, 2003 WL23112383 (E.D. Pa.) (Welsh, U.S.M.J.) (holding that petitioner failed to exercise reasonable diligence in bringing claim where "petitioner fail[ed] to allege any steps that he took to attempt to obtain from the state court or his previous counsel portions of the state proceedings which he felt he needed to file a federal habeas petition, and he d[id] not allege that he sought to file a timely habeas petition and thenclarify it once he had access to his materials"). Finally, as respondent notes, even assuming that petitioner was entitled to equitable tolling for this time period and his grace period did not begin until January 2001, when petitioner encountered Mr. Moore and located his transcripts, his petition is still almost two years too late. Petitioner has not set forth an adequate explanation for the six and a half year delay in filing his petition, let alone a reason constituting extraordinary circumstances. Consequently, we decline to exercise our equitable tolling powers and we dismiss his entire petition.
Petitioner also claims that while being transported to Court in July 1987, he was instructed by the County Sheriff to change vehicles, leaving behind his court documents which were never returned to him. He claims that in November 1987 he received incomplete portions of his transcripts and received the remaining transcripts in July 1988 from Deputy Court Administrator Joseph A. Harrison. As previously stated, the fact that a petitioner does not have transcripts in his possession does not constitute extraordinary circumstances sufficient to justify equitable tolling. In addition, since these events occurred prior to the beginning of petitioner's one year grace period, equitable tolling would not be possible.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED. There is no probable cause to issue a certificate of appealability.ORDER
AND NOW, to wit, this ___ day of ___, 2004, upon consideration of the pleadings and record herein, and after review of the Report and Recommendation of United States Magistrate Judge Charles B. Smith, it is hereby ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED.
2. The Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, is DENIED and DISMISSED.
3. There is no probable cause to issue a certificate of appealability.
It is so ORDERED.