Opinion
Civil Action No. 04-586.
May 17, 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 at Coal Township, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On February 16, 1995, following a jury trial presided over by the Honorable James J. Fitzgerald, III of the Philadelphia County Court of Common Pleas, petitioner was convicted of first degree murder, possession of an instrument of crime, and criminal conspiracy. Specifically, petitioner was found guilty of participating in the killing of eighteen-year-old Wendy Glover, and the disposal of her remains at a railway embankment. On April 25, 1995, petitioner was sentenced to life imprisonment for the murder as well as concurrent terms of imprisonment for the lesser offenses.
The Superior Court of Pennsylvania affirmed the judgment of sentence on December 31, 1997. Commonwealth v. Santo, 706 A.2d 1258 (Pa.Super. 1997). Petitioner's request for Allowance of Appeal to the Pennsylvania Supreme Court was denied on September 14, 1998.Commonwealth v. Santo, 727 A.2d 1119 (Pa. 1998). Likewise, the Supreme Court of the United States denied Santo's petition for writ of certiorari on February 22, 1999. Lamonz Santo v. Pennsylvania, 525 U.S. 1156, 119 S.Ct. 1063 (1999).
Almost a year later, on February 17, 2000, Santo filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq., which the PCRA court denied without a hearing on June 18, 2002. Petitioner appealed to the Superior Court, which affirmed the PCRA court's decision on December 5, 2003.
Petitioner filed a pro se Petition for Writ of Habeas Corpus with this court on May 22, 2002, but subsequently requested that his petition be withdrawn "until a deciding decision has been ruled on in the state courts." On September 11, 2002, this court issued a Report and Recommendation granting petitioner's request, and admonishing him that he would have a mere five days after the resolution of his PCRA appeal in which to timely file a new Petition for Writ of Habeas Corpus. Judge Van Antwerpen approved and adopted the Report and Recommendation on October 7, 2002.
Petitioner executed the instant Petition for Writ of Habeas Corpus on February 3, 2004, setting forth the following claims:
The Petition for Writ of Habeas Corpus was docketed on February 11, 2004.
(1) Ineffective assistance of trial and appellate counsel;
(2) Ineffective assistance of PCRA counsel; and
(3) Violation of due process and equal protection rights as a result of the trial court's failure to suppress petitioner's confession.
Respondent retorts that the petition is time-barred, and thus petitioner is not entitled to habeas review or relief.
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:
A1-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. § 2241(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 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, 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. § 2241(d)(1). 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 conviction became final on February 22, 1999, when the Supreme Court of the United States denied his Petition for Writ of Certiorari. Thus, under the AEDPA, petitioner had until February 22, 2000 to file a timely petition for a writ of habeas corpus.
The one-year limitation period was tolled when petitioner filed his first Petition for a Writ of Habeas Corpus on February 17, 2000. On December 5, 2003, the Superior Court affirmed the PCRA court's dismissal of petitioner's claims. Petitioner had thirty days from that date to file a petition for Allowance of Appeal to the Supreme Court of Pennsylvania, but he failed to do so. As a result, at the end of that thirty days, the AEDPA limitation period resumed running. Since there were only five days of the one-year period remaining, it expired thirty-five days after the Superior Court's ruling, on January 9, 2004.
Petitioner did not file his current habeas petition, however, until February 11, 2004, more than one month after the statute of limitations had run. Having thus failed to comply with the statute, this court has no choice but to dismiss the request for habeas 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:
RECOMMENDATION
AND NOW, this ____ day of May, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for a Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.