Opinion
Civil Action No. 03-06778-JF.
February 16, 2005
MEMORANDUM AND ORDER
The magistrate judge to whom this case was referred has filed a comprehensive report, and has recommended that the petition for a writ of habeas corpus should be denied as untimely. I agree. Petitioner's conviction became final before the enactment of AEDPA, hence he had until April 23, 1997 to seek habeas relief in this court, unless a properly-filed petition for collateral relief in the state courts was pending thereafter, so as to extend the period. The petition was filed in this court on December 17, 2003. Although petitioner's first PCRA petition was pending during part of the intervening period, his second and third PCRA petitions were not properly filed since they were untimely. The first PCRA petition extended the EDPA deadline until August 1, 1996. The present petition was filed on December 17, 2003, more than six years after the limitations period expired.
Petitioner's counsel has filed a lengthy memorandum supporting petitioner's objections to the magistrate's report, arguing that the limitations period should be equitable tolled because petitioner's trial and post-conviction counsel were all inadequate — thus presenting "cause" for missing the limitations deadline — and that petitioner is actually innocent of the crime of which he stands convicted.
The magistrate judge concluded that the state courts had made factual findings in the PCRA proceedings which negated the "actual innocence" defense, and that the slight additional "new" evidence now proffered by the petitioner did not suffice, when coupled with the earlier evidence, to meet petitioner's burden of proof on the issue of actual innocence. Moreover, as the magistrate judge noted, it appears to be an open question in this circuit as to whether a showing of actual innocence is a valid basis for equitably tolling the AEDPA limitations period. See Harper v. Vaughn, 272 F. Supp.2d 527, 534 (E.D. Pa. 2003). I agree with the magistrate judge that, assuming there is such an exception, the evidence presented by petitioner does not suffice to meet the high standards imposed by Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed.2d 397 (1986). At most, petitioner's evidence suggests that a trial verdict of not guilty would not have been unreasonable. But that is not enough to permit a federal court to set aside the trial verdict.
I therefore will approve the magistrate judge's report, and his recommendation that the petition be denied. But because petitioner's arguments in favor of a finding of actual innocence are substantial, and because of the need for clarification of the law on this subject, I believe it appropriate to enable the Third Circuit Court of Appeals to review this decision, if it wishes to do so. Accordingly, a certificate of appealability will be issued.
An Order follows.
ORDER
AND NOW, this day of February 2005, upon consideration of the Report and Recommendation of Magistrate Judge Charles B. Smith, and petitioner's objections to that Report, IT IS HEREBY ORDERED:1. The Report and Recommendation of Magistrate Judge Smith are APPROVED and ADOPTED.
2. The petition for habeas corpus is DENIED.
3. Because petitioner has, arguably, raised substantial issues as to the constitutional validity of his conviction and sentence, a certificate of appealability is GRANTED.