Opinion
Civil Action No. 03-3115.
June 30, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a pro se petition for writ of habeas corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution ["SCI"] Graterford, Pennsylvania, where he is serving a life sentence for murder. For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed as untimely under 28 U.S.C. § 2244(d)(1).
BACKGROUND
The facts in this discussion have been taken from Mr. Saunders' habeas petition, the Commonwealth's response, Petitioner's traverse, and the state court records.
Petitioner was arrested and charged with murder and related offenses arising from the August 29, 1994 shooting death of Al-Moez Alimohamed. On January 18, 1996, pursuant to a negotiated plea agreement, Petitioner pled guilty to murder in the first degree, robbery, violating the Uniform Firearms Act, possessing an instrument of crime and criminal conspiracy, and promised to testify as a Commonwealth witness at the trial of his co-defendants, Anthony Archer and Gregory Pennington. In turn, the Commonwealth promised not to seek the death penalty and to request life imprisonment for Petitioner on the first degree murder charge. See State Court Record: April 1997 Trial Court Opinion [marked "D-9" at the lower center of the page] at pp. 1-2.
Petitioner testified at the trial of co-defendants Archer and Pennington, both of whom were convicted on February 12, 1996 of the robbery and weapons offenses, but were acquitted of murder. Id.
On March 4, 1996, Petitioner filed a pre-sentence motion to withdraw his guilty plea. See State Court Record: Docket Entries at 3-4-96. In his motion to withdraw, Petitioner averred that he was innocent of the crimes to which he pled guilty. See State Court Record: Motion to Withdraw Guilty Plea [marked "D-5" at the lower center of the page] at ¶ 4.
On March 13, 1996, after hearing argument on Petitioner's motion to withdraw his guilty plea, the trial court denied the motion and sentenced Petitioner, in accordance with the plea agreement, to life imprisonment for first degree murder, plus a concurrent aggregate term of twenty to forty years for the remaining charges. See State Court Record: Docket Entries at 3-13-96.
In concluding that Petitioner's innocence claim was "totally without merit," the trial court cited to Petitioner's testimony at his co-defendants' trial, finding:
"Mr. Saunders in fact testified as a Commonwealth witness against Mr. Archer and Mr. Pennington (as did Mr. Taylor). He confirmed that along with his codefendants, he planned to commit a robbery on the evening in question, even passing up three other victims before deciding on Mr. Al-Moez Alimohamed, the ultimate victim. (NT, 2/6/96, p. 152-155). He admitted that he confronted the victim with a sawed off rifle, struck him and took his keys. (NT, 2/6/96, p. 155-158). He also confirmed that after they knocked Mr. Alimohamed to the ground and took his property, he and Mr. Taylor met across the street and decided that they were going to shoot Mr. Alimohamed to prevent him from identifying them. (NT, 2/6/96, p. 159). He testified that he and Mr. Taylor returned to Mr. Alimohamed who was still on the ground, went through his pockets for a second time when Mr. Taylor told Mr. Saunders to shoot Mr. Alimohamed. (NT, 2/6/96, p. 160). Mr. Saunders testified that at that point he gave the gun to Mr. Taylor who shot the victim. (NT, 2/6/96, p. 161). [footnote omitted]. During his trial testimony, Mr. Saunders acknowledged the plea agreement which he signed on January 18, 1996."
State Court Record: April 1997 Trial Court Opinion [marked "D-9" at the lower center of the page] at pp. 4-5.
On April 1, 1996, Petitioner filed a direct appeal to the Pennsylvania Superior Court. On July 24, 1997, the appeal was "dismissed without prejudice to Appellant's rights under the Post Conviction Relief Act" because counsel failed to file a brief for Mr. Saunders. See State Court Record: July 24, 1997 Superior Court Order [marked "D-11" at the lower center of the page].
Petitioner did not seek allocatur review of the dismissal of his direct appeal.
By letter dated September 23, 1997, addressed to Petitioner from the Court of Common Pleas Post Trial Unit, Petitioner was informed that his direct appeal had been dismissed without prejudice to his rights under the Post Conviction Relief Act ["PCRA"], and was advised that he was required to file a PCRA petition if he wanted his appellate rights reinstated. See State Court Record: September 23, 1997 letter.
On December 14, 1998, Petitioner filed a PCRA petition, asserting that his guilty plea had been unlawfully induced. Petitioner stated:
"I was informed by my attorney and family to plea guilty. I informed attorney and my family in the courtroom and before the start of this matter that I was not guilty and did not want to plea guilty. I was informed by my attorney Mr. Moore Esq. who also informed my family that if I did not plea guilty that I would be executed. And he made an agreement with the District Attorney to save my life and that I could make parole in ten (10) to fifteen (15) years. Its my understanding that this is not at this time, or may not had been at that time. That there is no parole at all or within 15 years. That the law clinic at Graterford informed me of this. [sic]"
State Court Record: PCRA Petition [marked "D-12" at lower center of page] at p. 3.
The PCRA Court appointed counsel to represent Petitioner. Counsel filed an amended PCRA petition, seeking reinstatement of Petitioner's right to appeal nunc pro tunc. See State Court Record: Amended PCRA Petition [marked "D-14" in lower center of page].
On July 16, 1999, the PCRA Court dismissed Mr. Saunders' PCRA petition without prejudice, and reinstated his appeal rights nunc pro tunc. See State Court Record: July 16, 1999 Order [marked "D-15" in lower center of page].
On July 21, 1999, Petitioner filed a notice of appeal nunc pro tunc. On appeal, Petitioner argued that: (1) the trial court erred in failing to grant his pre-sentence motion to withdraw his guilty plea; and (2) trial counsel was ineffective in advising Petitioner to plead guilty. See State Court Record: Appellant's 1925(b) Statement [marked "D-19" in lower center of page].
The PCRA Court filed an opinion, and a supplemental opinion, addressing Petitioner's claims on appeal. See State Court Record: April 1997 Opinion and November 2000 Supplemental Opinion [marked "D-9" and "D-20", respectively, in lower center of page].
By Memorandum and Opinion, dated December 28, 2001, the Superior Court affirmed the judgment of sentence, concluding that the PCRA Court lacked jurisdiction to reinstate Petitioner's appellate rights nunc pro tunc because his PCRA petition was untimely. See State Court Record: December 28, 2001 Superior Court Opinion.
On January 9, 2002, Petitioner sought discretionary review in the Pennsylvania Supreme Court. Allocatur was denied on May 14, 2002. See State Court Record: Supreme Court Docket Entries.
On May 9, 2003, Petitioner signed and dated the instant habeas petition. It was filed in this Court on May 15, 2003. See Habeas Petition [Docket Entry No. 1]. On September 29, 2003, at the Court's direction, Petitioner filed a revised habeas petition on a current § 2254 form. See Revised Habeas Petition [Docket Entry No. 7].
For the purposes of this Report and Recommendation, under the prison mailbox rule, I will accept the earliest date, May 9, 2003, as the date of filing.
As grounds for habeas relief, Petitioner presents the following issues:
1. "Denial of right to appeal, conviction obtained by unlawfully and not voluntarily plea. Petitioner was denied to withdraw an unvoluntarily plea of guilty. Petitioner was induced by trial lawyer, informing petition[er] it did not matter if he did not have or fire the shots which killed, that if he not plea guilty that he would receive the death penalty. [sic]"
2. "Actual innocence. The Defendant testified that he was actually innocent and that the evidence was insufficient to convict, the burden of showing shared criminal intent as well as conduct is upon the prosecution to show and meet this burden of proof as in this case where defendant is innocent."See Revised Habeas Petition at pp. 9-10.
On January 2, 2004, the Respondents answered the habeas petition, arguing that it is time-barred under 28 U.S.C. § 2244(1)(A). In the alternative, the Respondents argue that Petitioner's habeas claims are procedurally defaulted. See Commonwealth's Response [Docket Entry No. 13] at p. 7.
On June 8, 2004, Petitioner filed a traverse. In this pleading, Petitioner argues that the state court improperly restricted his right to direct appeal nunc pro tunc by applying timeliness requirements of the PCRA, and that he "should be allowed to overcome faulty rulings by state court's decisions and move pass the misstatement of untimely appeal. Under the above circumstances, Petitioner's request's equitable tolling to this habeas petition." See Traverse [Docket Entry No. 18] at pp. 5-11.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA" or the "Act"], signed into law on April 24, 1996, significantly amended the laws governing habeas corpus petitions.One of the amended provisions, 28 U.S.C. § 2244(d), imposes a one-year statute of limitations on state prisoners who seek federal habeas relief. A habeas petition must be filed within one year from the date on which the petitioner's judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1).
While the date on which the petitioner's conviction becomes final is typically the start date for the limitations period, the statute permits the limitation period to run from four different points in time, depending on which occurs latest. In addition to the date on which the petitioner's conviction becomes final, the start date can also run from: (1) "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"; (2) "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 (3) "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
There is nothing in the pleadings before me to suggest that the start date for the statute of limitations period should be permitted to run from a point later in time than the date on which Mr. Saunders' conviction became final.
In the instant case, Mr. Saunders' state conviction became final on August 24, 1997. This is the last date on which Petitioner could have filed a timely request for discretionary review in the Pennsylvania Supreme Court. See Pa. R.A.P. 903(a) (which provides a thirty day appeal period after entry of the order from which the appeal is taken).
Petitioner's habeas statute of limitations began on August 25, 1997, and expired on August 25, 1998. The instant habeas petition was not filed for over four and a half years beyond the statutory deadline. It is untimely and not subject to habeas review.
A. Statutory Tolling.
The AEDPA amendments include a tolling provision for "the 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." See 28 U.S.C. § 2244(d)(2).
Petitioner had no pending state collateral petitions prior to August 25, 1998. His PCRA petition, filed after the expiration of his habeas statute of limitations, does not have any effect on his habeas limitations period.
B. Equitable Tolling.
§ 2244's one-year statute of limitations is subject to equitable tolling. However,
"[E]quitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.' Generally, this will occur when the petitioner has `in some extraordinary way . . . been prevented from asserting his or her rights.' Moreover, to be entitled to equitable tolling, `[t]he petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims.' Mere excusable neglect is not sufficient." Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *4 (3d Cir. March 17, 2003) (citations omitted).
Equitable tolling may be appropriate where: "(1) 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 mistakenly in the wrong forum." Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
Petitioner argues that his habeas statute of limitations period should be equitably tolled because the state court improperly restricted his right to direct appeal nunc pro tunc by applying a one year statute of limitations under the PCRA. As noted above, Petitioner's PCRA petition was filed after his habeas limitations period expired. Petitioner has not alleged, nor does the record before me support, a finding that the circumstances of this case present the "rare situation" which demands equitable tolling of the habeas statute.
C. Actual Innocence.
In his habeas petition, Mr. Saunders asserts that he is actually innocent, arguing:
"Here the Petitioner's statement the day of his arrest as well as before the sentencing court was that he did not kill and did not harbor or possess the specific or otherwise intent that anyone be kill[ed]. [. . .] The record is clear that your Petitioner was not the killer and also clear that he did not harbor intent to have Mr. Mohammed killed. [. . .] To declare actual innocence of murder when evidence show[s that] defendant did not murder and did not harbor the intent that it be done would give reason for believably of a lay understanding that defend[ant] would receive five (5) years sentence for his part in the robbery and stand not convicted of murder. [sic]"See Traverse at pp. 29, 32.
The question of whether there is an "actual innocence" exception to the AEDPA statute of limitations has not yet been decided by either the United States Supreme Court, or the Third Circuit. See, e.g., Chhoeum v. Shannon, 219 F. Supp.2d 649, 654 n. 2 (E.D. Pa. 2002) ("On June 12, 2001, the Third Circuit granted a certificate of appealability on the question: `Is there an `actual innocence' exception to AEDPA's statute of limitations provided in 28 U.S.C. § 2244(d)(1)?' Hussman v. Vaughn, CV. No. 99-4512, Ct.App. No. 01-1724. To date, no decision has been rendered."), Hussman v. Vaughn, 67 Fed. Appx. 667, 2003 WL 1924693 at *2 (3d Cir. April 24, 2003) (finding that the petitioner had no basis to assert a claim of actual innocence and declining to address the issue of whether there is an actual innocence exception to the habeas statute of limitation).
Assuming arguendo that there is such an exception to the AEDPA statute of limitations, in order to establish actual innocence,
"a habeas petitioner must `persuade the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.' Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002) (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Actual innocence means `factual innocence, not mere legal sufficiency.' Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The Supreme Court has required a petitioner `to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.' Schlup, 513 U.S. at 324, 115 S.Ct. 851 (emphasis added); see also Cristin, 281 F.3d at 420. `Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.' Schlup, 513 U.S. at 324, 115 S.Ct. 851; see also Wertz v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (noting that the actual innocence exception `will apply only in extraordinary cases.')." Sweger v. Chesney, 294 F.3d 506, 522-23 (3d Cir. 2002).
Petitioner's challenge to the legal sufficiency of the evidence against him does not establish actual innocence. See Sweger, 294 F.3d at p. 523 (3d Cir. 2002) (arguments that allege legal insufficiency, rather than establish factual innocence, do not make out a claim of actual innocence). Petitioner's reference to his statements to police and the sentencing court do not constitute "new evidence" under the Schlup standard. Id. at p. 523 (3d Cir. 2002) (noting that while "new reliable evidence is almost always required to establish actual innocence," petitioner's arguments concerning alleged prejudicial and inadmissible evidence had been considered and rejected during direct appeal and in the PCRA forum, and presented no new evidence). See also Woods v. Brennan, 2001 WL 1428343 at * 3 n. 7 (E.D. Pa. 2001) (evidence that could properly have been discovered through the exercise of due diligence is not "new").
Petitioner has not met his burden of establishing actual innocence.
RECOMMENDATION
For the reasons stated above, it is recommended that the Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, be DENIED AND DISMISSED AS TIME-BARRED. It is further recommended a finding be made that there is no probable cause to issue a certificate of appealability.