Opinion
CIVIL ACTION No. 18-cv-00013-EGS
08-27-2018
BOBY PROPHETE, Petitioner, v. MARK GARMON, et al., Respondents.
REPORT AND RECOMMENDATION
Before me is the petition for writ of habeas corpus of Boby Prophete, filed pursuant to 28 U.S.C. § 2254. ECF No. 1 ("Pet."). The matter was referred to me for a Report and Recommendation. ECF No. 3.
On December 5, 2012, Prophete pleaded guilty to involuntary deviate sexual intercourse and simple assault in the Philadelphia Court of Common Pleas. Commw. v. Prophete, 1452 EDA 2015, 2016 WL 1230003 (Pa. Super. Ct. Mar. 29, 2016). On March 8, 2013, he was sentenced to an aggregate sentence of seven to fifteen years in prison, followed by five years of probation. Id. After exhausting the available state court remedies, including pursuing relief under Pennsylvania's Post-Conviction Relief Act, Prophete petitioned this court for a writ of habeas corpus on January 2, 2018. ECF No. 1.
Prophete raises claims implicating, in conclusory fashion, due process and equal protection, along with a claim that his trial counsel was ineffective because "[he or she] had no intention of litigating a Defense and/or even investigating and compiling a Direct Appeal process for the Petitioner." Pet. at 7.
I will refer to Prophete's Petition using the pagination assigned by the court's Electronic Case Filing (ECF) system.
I cannot, however, reach the merits of Prophete's petition without first determining whether the petition is timely filed. After careful review, I find that Prophete's petition was filed after the one-year statute of limitations expired, and that the untimely filing cannot be remedied by statutory tolling or equitable tolling. For the reasons set forth below, I respectfully recommend that Prophete's petition be dismissed with prejudice, and that his pending Motion for Appointment of Counsel (ECF No. 4) be denied as moot.
PROCEDURAL BACKGROUND
Prophete pleaded guilty to involuntary deviate sexual intercourse and simple assault in the Philadelphia Court of Common Pleas and was sentenced to seven to fifteen years in prison, followed by five years of probation on March 8, 2013. Docket No. CP-51-CR-0009790-2012 at 7.
Following his guilty plea, Prophete filed a PCRA petition on March 24, 2014. Id. at 8. Prophete never filed a direct appeal of his judgment of sentence. The Philadelphia Court of Common Pleas issued notice of its intent to dismiss Prophete's PCRA petition on February 18, 2015. Id. at 9. After receiving no response from Prophete, the court formally dismissed his PCRA petition on April 9, 2015. Id. at 10. Prophete then appealed the PCRA dismissal to the Superior Court, which affirmed the dismissal in a written opinion dated March 29, 2016. See Commw. v. Prophete, 1452 EDA 2015, 2016 WL 1230003 (Pa. Super. Ct. Mar. 29, 2016). The Pennsylvania Supreme Court denied Prophete's petition for allowance of appeal on August 16, 2016. Docket No. CP-51-CR-0009790-2012 at 11.
DISCUSSION
The issue before me is whether Prophete's habeas petition can be deemed timely filed under the AEDPA.
A habeas petition must be timely filed to be justiciable. The instant petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (the AEDPA). 28 U.S.C. § 2241 et seq. The AEDPA imposes a one-year period of limitation on the filing of petitions:
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 -28 U.S.C. § 2244(d)(1).
(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 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.
The limitation period does not dictate "an inflexible rule requiring dismissal whenever AEDPA's one-year clock has run." Day v. McDonough, 547 U.S. 198, 199 (2006). "Instead, the limitation period is subject to both statutory and equitable tolling." Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 (3d Cir. 2013). Statutory tolling effectively freezes the clock for "[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." 28 U.S.C.A. § 2244 (d)(2). Equitable tolling stops the clock when extraordinary circumstances prevent a petitioner from timely filing, rendering strict enforcement of the one-year limitations period unfair. Wood v. Milyard, 566 U.S. 463, 469 n. 3 (2012). See also Holland v. Florida, 560 U.S. 631 (2010), Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). The flexibility inherent in the concept of equitable tolling serves to "relieve hardships which, from time to time, arise from a hard and fast adherence to more absolute legal rules, which, if strictly applied, threaten the evils of archaic rigidity." Holland, 560 U.S. at 650 (2010) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248 (1944)) (internal quotations omitted). Equitable tolling will be considered only after a petition is deemed untimely after accounting for statutory tolling. See Jenkins, 705 F.3d at 85.
Here, because he sought no direct appeal, Prophete's judgment of sentence became final thirty days after the trial court assessed the penalty on March 8, 2013. See Pa.R.A.P. 903(3) ("In a criminal case in which no post-sentence motion has been filed, the notice of appeal shall be filed within 30 days of the imposition of the judgment of sentence in open court."). The habeas clock began ticking thirty days after entry of the judgment - June 7, 2013. In the absence of any tolling, the one-year AEDPA limitations period would expire on June 7, 2014.
Prophete engaged in PCRA proceedings that activated the statutory tolling mechanism. However, for the reasons discussed below, this tolling period is not of sufficient length to make Prophete's § 2254 petition timely. Additionally, Prophete is not entitled to any period of equitable tolling.
A. Statutory tolling does not render Prophete's petition timely.
On March 24, 2014, Prophete filed a timely petition in state court pursuant to the Post-Conviction Relief Act (PCRA). At the time of his PCRA filing, Prophete had run 290 days off the one-year habeas clock. Prophete's PCRA petition tolled the limitations period, freezing the clock until resolution of the PCRA petition. See 28 U.S.C. § 2244(d)(2). As Prophete had already run 290 days off the habeas clock, he would have seventy-five days remaining once the PCRA litigation ran its course.
Prophete's PCRA petition became final when the Pennsylvania Supreme Court denied his petition for allowance of appeal on August 16, 2016. The habeas clock began ticking yet again, and Prophete now had seventy-five days - until October 30, 2016 - to timely file his habeas petition under § 2254.
October 30, 2016 was a Sunday. Even assuming a liberal filing deadline extension occasioned by the court's weekend closure, Prophete would have had only one additional day added to the AEDPA deadline. --------
October 30, 2016 came and went without Prophete filing a habeas petition. In fact, Prophete would not sign his habeas petition until December 21, 2017, would not mail his habeas petition until December 28, 2017, and the petition would not be formally docketed until January 2, 2018 - 417 days, 424 days, and 429 days past the October 30, 2016 deadline, respectively. Even after considering the period of statutory tolling to which he was entitled, Prophete's petition was untimely.
Statutory tolling does not save Prophete's petition. I turn now to equitable tolling.
B. Equitable tolling is inappropriate here because Prophete has not alleged any extraordinary circumstances that prevented timely filing.
Equitable tolling may protect a petition from untimeliness when statutory tolling cannot offer relief. See Jenkins, 705 F.3d at 85. However, equitable tolling is available only where a petitioner demonstrates "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (internal quotation marks 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 (3d Cir. 2001) (collecting cases).
Here, Prophete alleges no meritorious grounds for invoking equitable tolling. He does, however, acknowledge that his petition is untimely, blaming the late filing on unspecified mental health issues and a lack of seasonable legal advice:
Since the Petitioner Suffers from Mental Health Disorders that substantially effect his Mental Capacity and/or Judgment and Comprehension. The petitioner asks this Honorable District Court to Consider the underlined [sic] circumstances and also the Fact that the petitioner did not receive any legal aide [sic] until after one year time period for filing under 28 U.S.C. §2244(d) attached to this foregoing action.Pet. at 13.
The circumstances alleged by Prophete - mental health issues and lack of legal guidance - do not constitute "extraordinary circumstances" warranting the invocation of equitable tolling. In fact, Prophete alleges circumstances that presumably existed at most - if not all - times relevant to his criminal prosecution and PCRA proceedings. Despite initially proceeding pro se during his PCRA litigation - and ostensibly suffering from the same mental health issues - Prophete was able to timely file his initial PCRA petition without counsel, timely appeal the trial court's denial to the Superior Court, and timely seek allowance of appeal from the Pennsylvania Supreme Court. See Docket No. CP-51-CR-0009790-2012 at 8-11. For Prophete to now allege that these same circumstances excuse missing a deadline by more than four hundred days is unconvincing.
More importantly, nothing Prophete alleges in his petition indicates that he has been pursuing his rights diligently, or at all. I acknowledge the less-than-rigid standard of diligence required for equitable tolling. See Holland, 560 U.S. at 653 ("The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.") (internal citations and quotations omitted). Yet, Prophete has failed to meet even the reasonable diligence standard. He makes no allegations of any diligence in pursuing his rights, instead blaming his untimely filing on unspecified preexisting mental health issues and a lack of legal advice. Rather than demonstrate diligence, Prophete's actions exhibit passivity and inaction.
In the absence of any evidence that Prophete diligently pursued his rights, and that "extraordinary circumstances" prevented him from timely filing his habeas petition, I must conclude that the untimely filing cannot be excused through the application of equitable tolling.
While Prophete does not request an evidentiary hearing, instead requesting that the court "Vacate the Guilty Plea and Sentence and remand for a Trial, and/or Release from Illegal Detention and/or Confinement and/or Commitment [sic]," I conclude that a hearing would be inappropriate where Prophete alleges no facts that, if proven, would render his petition timely.
RECOMMENDATION
Boby Prophete's petition for writ of habeas corpus was filed after the AEDPA limitations period had run. Despite the benefit of a period of statutory tolling, Prophete's petition remains untimely because he is not entitled to any period of equitable tolling.
Because it was untimely filed, I respectfully recommend that Prophete's petition for writ of habeas corpus be dismissed with prejudice. Furthermore, I have denied Prophete's Motion to Appoint Counsel (ECF No. 4) as moot in light of my recommendation that his petition be dismissed with prejudice. Finally, I recommend that no certificate of appealability issue. Prophete "has [not] made a substantial showing of the denial of a constitutional right" under 28 U.S.C. § 2253(c)(2) because he has failed to demonstrate that "reasonable jurists" would find my "assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also United States v. Cepero, 224 F.3d 256, 262-63 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012).
The parties may object to this report and recommendation under 28 U.S.C. 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with this document. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and shall provide an explanation of the basis for the objection. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007). A party wishing to respond to objections shall file a response within fourteen (14) days of the date the objections were served.
BY THE COURT:
/s/ Richard A.Lloret
RICHARD A. LLORET
U.S. Magistrate Judge