Opinion
Civil Action No. 03-5411.
July 8, 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, Louis Saunders, is currently incarcerated at the State Correctional Institution Rockview, located in Bellefonte, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice and without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, all attachments to those pleadings, and the state court record.
Petitioner was tried in the Court of Common Pleas of Philadelphia County before the Honorable Paul Ribner for the murder of Belton Porterfield on April 5, 1993. A jury trial commenced on January 24, 1995, and the jury began deliberations on the morning of Friday, January 27, 1995. The following Monday morning, one juror called and informed the court that she was ill with the flu. The trial court determined that the juror was unlikely to return by the end of the week, and substituted that juror with an alternate over defense counsel's objections. Two hours later, the jury returned with a verdict of guilty of second-degree murder, possessing instruments of crime, and carrying firearms on a public street. Judge Ribner immediately imposed the mandatory life sentence for the murder conviction and suspended the remaining sentences.
Petitioner filed post-sentencing motions and Judge Ribner held oral argument on the motions on June 20, 1995. The post-sentence motions were denied on June 28, 1995, and Judge Ribner issued his written decision regarding the denial of post-sentence motions on April 18, 1996.
Petitioner appealed this decision to the Superior Court of Pennsylvania, contending that the trial court erred in impaneling an alternate juror after deliberations had begun. On appeal, the Superior Court vacated the conviction and remanded the case for a new trial on November 20, 1996, after finding that Judge Ribner had violated Pa. R. Crim. P. 1108(a) by seating an alternate juror after deliberations had commenced. Commonwealth v. Saunders, 686 A.2d 25 (Pa.Super. 1996).
A second jury trial was conducted before the Honorable John J. Poserina, and Petitioner was convicted on September 26, 1997, of third degree murder, possession of an instrument of crime ("PIC"), and carrying a firearm on a public street. Petitioner was found not guilty of robbery. He was sentenced to twelve and one-half to twenty-five years' imprisonment on November 18, 1997. No direct appeal was filed.
Petitioner filed a pro se motion seeking an appeal nunc pro tunc and appointment of counsel. The trial court appointed counsel and granted Petitioner permission to appealnunc pro tunc on September 29, 1999. On October 10, 2000, Petitioner's counsel filed an appeal raising the following issues: (1) the admissibility of the weapon in Petitioner's possession five days before the shooting which had similar characteristics as the weapon used in this shooting but was not recovered; and (2) whether it was prosecutorial misconduct to advise the defense that a witness was available but would not be called by the prosecution; (3) the court erred by giving an instruction to the jury concerning flight because there was no evidence of the fact that the defendant either knew or should have known that a warrant had been issued for his arrest.
Judge Poserina filed an Opinion on October 20, 2000, regarding these three issues raised on appeal. With respect to the issue of access to weapons, the court explained:
The defense raised the issue of admissibility of the weapon in the possession of the defendant, five days preceding this shooting, which has similar characteristics of the weapon used in this case, but was not recovered.
The prosecution need not establish that a particular weapon was actually used in the commission of a crime in order for it to be admissible at trial:Discussion:
. . . .
Under the foregoing analysis, there was no reversible error in allowing the evidence of possession of a similar gun on a prior occasion to be explained to the Jury.Commonwealth v. Saunders, No. 9312-2026-2032, Ct. Com. Pl. Phila., pp. 5-6. The Commonwealth contended in its brief to the Superior Court of Pennsylvania that, in order to restore his appellate rights, Petitioner was required to pursue relief under the Post Conviction Relief Act following Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). The Superior Court, because it was unable to determine from the state of the record when Petitioner first requested nunc pro tunc relief, remanded this case to the trial court to make a specific finding of the date on which Petitioner first sought nunc pro tunc relief. The trial court filed a supplemental finding of fact that Petitioner first filed his motion in January of 1999, prior to the Lantzy decision. Therefore, the appeal was returned to the Superior Court for a decision on its merits.
The Superior Court allowed the Commonwealth an additional fifteen days to file a brief addressing the merits of Petitioner's claim, but the Commonwealth instead filed a letter brief repeating that Petitioner's motion seeking nunc pro tunc relief was not filed prior to Lantzy. The Superior Court then directed the Commonwealth to file a brief addressing the merits of Petitioner's claim. The Commonwealth again did not file a brief as directed, and the Superior Court addressed the merits of Petitioner's claim without benefit of any responsive argument by the Commonwealth.
Petitioner's sole claim on appeal before the Superior Court was that the trial court committed reversible error when it permitted the prosecutor to introduce evidence that a 9 millimeter firearm was confiscated from Petitioner five days prior to the shooting of which Petitioner was accused. On March 12, 2002, the Superior Court issued a Memorandum Opinion, holding that the trial court committed reversible error, vacating Petitioner's judgment of sentence, and remanding for a new trial. The court noted the similarity between the case before it and Commonwealth v. Marshall, in which the Commonwealth was permitted to introduce evidence that the appellant had been in possession of a nine millimeter handgun eighty days prior to the homicide, and the weapon had been confiscated by police and remained in police custody on the night of the crime. Commonwealth v. Marshall, 743 A.2d 489 (Pa.Super. 1999), appeal denied, 757 A.2d 930 (Pa. 2000) (table). The court held in Marshall that once the weapon which was in the accused's possession was confiscated by the police and was clearly not in the accused's possession at the time the crime was committed, the evidence is no longer relevant to prove the accused's possession of the weapon used in the crime because it was impossible for the gun to be the murder weapon and was in no way linked to the crime scene. Id. at 492. In the instant case, the Commonwealth introduced evidence that five days prior to the shooting in question, Petitioner was in possession of a nine millimeter handgun which was confiscated by police. Because the handgun was in police possession at the time of the shooting, the court found it could not have been the weapon used in the crime of which Petitioner was accused and therefore it was not relevant to any element of the crime. Resp., Ex. B, pp. 4-5. The court also opined that, as in Marshall, the only purpose of the evidence was to prejudice Petitioner. Id. at 5.
The Commonwealth filed a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania on April 11, 2002. On December 3, 2002, the Petition for Allowance of Appeal was granted, and the decision of the Superior Court was reversed pursuant toCommonwealth v. Eller, 807 A.2d 838 (Pa. 2002), affirming the Petitioner's convictions.
In Commonwealth v. Eller, 807 A.2d 838 (Pa. 2002), the Pennsylvania Supreme Court examined the issue whether the trial court was authorized to grant a facially untimely post-conviction request to restore direct appeal rights when the request was made prior to the issuance of Lantzy. The Supreme Court held that it was irrelevant whether an untimely request for the restoration of direct appeal rights occurred before or after Lantzy, sinceLantzy reaffirmed the principle that the PCRA provided the exclusive means under Pennsylvania law of obtaining post-conviction review and relief. Because the PCRA's timeliness provisions served as a jurisdictional bar to PCRA review, the court held that an untimely application for such relief was precluded as a matter of law. Eller, 807 A.2d at 844.
Petitioner filed the instant Petition on September 26, 2003, and on January 14, 2004, this case was referred by the Honorable Clarence C. Newcomer for preparation of a Report and Recommendation. Respondents filed their Response on April 12, 2004, and Petitioner was granted permission to file a Reply to the Response on May 18, 2004. Petitioner filed his Reply Memorandum on May 27, 2004, and the state court record was received on June 24, 2004.
The Petition before this Court seeks a determination of the following issues: (1) whether it was fundamentally unfair for the Supreme Court to reverse the Superior Court's grant of a new trial under Commonwealth v. Eller without real fact findings; (2) whether the Petitioner is entitled to federal relief under federal tolling provisions, and his innocence excused his default. Respondents deny that Petitioner is entitled to relief, and contend that the Petition is time-barred, that equitable tolling is inapplicable, 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 after the AEDPA's effective date, the limitations period begins to run on 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)(A). In this case, Petitioner's convictions became final on December 18, 1997, thirty days after his sentencing, because he did not file a direct appeal. Thus, his deadline for timely filing a federal habeas petition was December 18, 1998. Petitioner did not seek relief by filing a PCRA petition or a habeas petition in this Court until January of 1999, when he filed a motion to restore his direct appeal rightsnunc pro tunc which he avers that he signed on December 31, 1998. Petitioner's motion for nunc pro tunc relief was not properly filed for tolling purposes under section 2244(d)(2).Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir.), cert. denied, 124 S.Ct. 317 (2003). Thus, the Petition is time-barred.
Respondents note that Petitioner also had the same one-year time period, until December 18, 1998, to file for relief under the PCRA. See 42 Pa. C.S.A. § 9545(b).
Petitioner erroneously contends that his judgment of sentence became final on February 18, 1999. Pet.'s Reply, p. 4.
Petitioner argues that the doctrine of equitable tolling is applicable in his case. "[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)). 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)).
In his Reply to the Respondents' Response, Petitioner asserts that he:
filed a letter to the trial court seeking restoration of his direct appeal nunc pro tunc, due to his counsel's failure to perfect same as requested. Id. Clearly, when this petitioner filed his letter to the trial court, he did so correctly, because at the time he was following pre-Lantzy requirements as authorized under the guise of Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760, 764 (1996). With a degree of specificity, since a right to a direct appeal was precluded by Commonwealth v. Petroski, 695 A.2d 844 (Pa.Super. 1997), appellant's letter was the adequate procedure to reinstate his direct appellate rights, nunc pro tunc.
Logic dictates since his letter to the trial court was not treated as a PCRA Petition, there is no timeliness issue, because same was completed outside of the framework of the PCRA. Id. To apply Ellers as the Supreme Court has done here in the instant case at bar, is to create an injustice. The petitioner has been unfairly penalized for adhering to procedure for obtaining relief that was specifically approved by the same appellate court, which applied a new procedural analysis, which actually results in a manifest injustice. See Commonwealth v. Hernandez, 755 A.2d 1, 11 (Pa.Super. 2000) (citing Commonwealth v. Tyson, 535 Pa. 391, 394-395, 635 A.2d 623, 624-625 (1993).
Pet.'s Reply at 3. The state court record reveals that Petitioner sent a letter to Judge Poserina dated November 3, 1998, stating:
I appeared in your court room on or about September 16, 1998 for a murder trial. I was convicted on or about the 25th of September 1997 of third degree murder and VUFA on November 18, 1997. I appeared before your court for sentencing and was given a 12½-25 year sentence. I expressed my desire for an appeal, and requested that your honor appoint me new counsel to handle my appeal, your honor denied my request and a order was given to my attorney "Joshua M. Briskin" to file my appeal, and gave him 30 days to do so. Well, your honor it seems that he's dropped the ball and failed to file my appeal as well as your order and my request. I humbly ask your honor to appoint me new counsel and reinstate my appeal rights nunc-pro-tunc.
Later in the state court record, there is a March 24, 1999 letter from Judge Poserina to Joshua Briskin, Esquire, stating "Enclosed please find an Order date[d] March 24, 1999 permitting the defendant to Appeal nunc pro tunc within 30 days of this Order." Judge Poserina also issued an Order on March 24, 1999, ordering that Petitioner was permitted to file an appeal nunc pro tunc within thirty days of the Order, and ordering that Petitioner should have a new attorney appointed to represent him in the appeal. This information is relevant, according to Petitioner, because if the trial court treated his letter as a PCRA petition, Petitioner contends it was timely, and the subsequent appellate court decisions were erroneous.
This Court notes, however, that "in a non-capital case, . . . `attorney error, miscalculation, inadequate research, or other mistakes,' do not constitute extraordinary circumstances required for equitable tolling." Traub v. Folio, No. 04-386, 2004 WL 817067, at *3 (E.D. Pa. Apr. 13, 2004) (quoting Fahy, 240 F.3d at 244 and citing Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002) ("an attorney's mistake in determining the date a habeas petition is due" does not constitute an extraordinary circumstance for purposes of equitable tolling), cert. denied, 538 U.S. 1022 (2003)).
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 because his attorney did not file a PCRA petition or a direct appeal on his behalf. Respondents correctly note, however, that Petitioner makes no showing 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 even argue that his circumstances during the one-year limitations period placed any unusual encumbrance on him with respect to filing a habeas application or an extraordinary burden that prevented him from filing his 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 tolling have been met.
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this day of July, 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.