Opinion
Civil Action No. 00-CV-4861.
August 12, 2004
REPORT AND RECOMMENDATION
Before this court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, Larry Stephenson, is currently incarcerated at the State Correctional Institution at Graterford, Pennsylvania. For the reasons below, it is recommended that Stephenson's petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On June 20, 1974, following a jury trial in the Court of Common Pleas of Delaware County, Stephenson was found guilty of first-degree murder, robbery, and criminal conspiracy. On April 25, 1975, Stephenson was sentenced to life imprisonment for the murder conviction and a consecutive term of seven and one-half (7½) to fifteen (15) years' imprisonment for the remaining convictions. The Pennsylvania Supreme Court affirmed judgment of sentence on October 7, 1977. Commonwealth v. Stephenson, 378 A.2d 822 (Pa. 1977).
On January 25, 1991, Stephenson filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541 et seq. Counsel was appointed, and an evidentiary hearing was conducted on August 24, 1993. On February 14, 1996, the PCRA court dismissed the petition. The Superior Court of Pennsylvania affirmed the order of the PCRA court on October 16, 1996. Commonwealth v. Stephenson, 687 A.2d 861 (Pa.Super. 1996) (table). The Supreme Court of Pennsylvania denied allocatur on April 28, 1997. Commonwealth v. Stephenson, 693 A.2d 967 (1997) (table).
Stephenson filed a second PCRA petition on August 28, 1997. The PCRA court dismissed this petition as untimely. Stephenson appealed and the Superior Court remanded the matter to the PCRA court because Stephenson had not been provided the required notice of dismissal pursuant to Pa.R.Crim.P. 1507. Commonwealth v. Stephenson, 738 A.2d 1057 (Pa. Super 1999) (table). On May 26, 1999, the PCRA court provided Stephenson notice of intention to dismiss his petition without a hearing. Stephenson filed a response with the PCRA court in which he argued that his petition was not untimely because the Commonwealth had failed to disclose that an agreement had been made with co-defendant Christopher Jackson that provided for a dismissal of Jackson's pending charges in exchange for his testimony against Stephenson. This petition was again dismissed by the PCRA court as untimely on November 23, 1999. The Superior Court affirmed the order of the PCRA court on August 9, 2000. Commonwealth v. Stephenson, No. 2691 EDA 1999. Stephenson did not seek further review.
On September 26, 2000, Stephenson filed the instant pro se petition for a writ of habeas corpus. His petition was dismissed on January 20, 2001 as a second and successive petition. Stephenson was directed to seek an order from the United States Court of Appeals for the Third Circuit authorizing the district court to consider his petition if he wished to proceed. Stephenson appealed, and on September 18, 2002, the Third Circuit held that this was not a second or successive petition and remanded the matter to the district court for further proceedings. On June 30, 2004, the petition was referred for a report and recommendation. The Commonwealth filed its response on July 29, 2004 asserting that the petition is untimely.
On August 4, 2004, Stephenson filed a traverse in which he asserts that the limitations defense has been waived by the Commonwealth because it was not raised in the Third Circuit. The rules of waiver do not apply until the issue of successiveness, a threshold issue, is decided by the Circuit Court. Thus, the Commonwealth is not required to raise a timeliness claim until the petitioner has obtained permission to proceed in the District Court. Robinson v. Johnson, 313 F.3d 128, 138-141 (3d Cir. 2002).
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one year limitation period for filing applications for writs of habeas corpus. 28 U.S.C.A. § 2244(d)(1). Specifically, 28 U.S.C. § 2244(d)(1) provides as follows:
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 appeal; 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.
Section 2244 further provides 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. § 2244(d)(2).
Following the enactment of this one-year period of limitations, the Third Circuit Court of Appeals interpreted this amendment to provide for a "one year grace period" following its effective date of April 24, 1996. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) ("applying § 2244(d)(1) to bar the filing of a habeas petition before April 24, 1997, where the prisoner's conviction became final before April 24, 1996, would be impermissibly retroactive"). As a result, a petitioner whose conviction was final prior to the enactment of the limitations period was permitted to file for federal habeas corpus relief on or before April 23, 1997.
Stephenson's judgment of sentence became final on or about January 6, 1978, ninety (90) days after the Supreme Court of Pennsylvania denied allocatur and the time to seek review by the Supreme Court of the United States expired. See Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999) (citing Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (judgment final after the expiration of the time for seeking certiorari has expired whether or not review is actually sought)). Thus, Stephenson was entitled to the benefit of the grace period and he was required to file for habeas relief on or before April 23, 1997.
The earliest date the instant petition can be deemed filed is September 21, 2000, the date on which Stephenson's habeas petition was signed. Burns, 134 F.3d at 113 ("a pro se prisoner's petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court"). Thus, this petition is untimely and must be dismissed unless Stephenson can establish that the limitations period was tolled through September 21, 2000.
The limitations period may be tolled during the time a state collateral proceeding is pending if the collateral petition was properly filed under state law. 28 U.S.C. § 2244(d)(2). A properly filed state petition is one that is "submitted according to the state's procedural requirements, such as the rule governing the time and place for filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998).
As set forth above, the limitations period would have begun to run on April 24, 1996. However, at that time Stephenson's first PCRA petition was pending and remained pending until the Supreme Court of Pennsylvania denied allocatur on April 28, 1997.Commonwealth v. Stephenson, 693 A.2d 967 (1997) (table). Therefore, the limitations period did not begin to run until April 28, 1997. This extended the filing date to April 27, 1998.
Stephenson's second PCRA petition does not further toll the limitations period because the state courts found the PCRA petition to be untimely, therefore, it could not serve to toll the federal limitations period. See Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003) (an untimely PCRA petition does not toll the federal limitations period, even where the petitioner sought to pursue his PCRA petition under a statutory exception to the PCRA's time bar). Because Stephenson did not file the instant petition until September 21, 2000, this court must find that it is untimely.
This court must also conclude that Stephenson does not satisfy any of the exceptions to the period of limitations set forth in § 2244(d)(1)(B)-(D). Stephenson does not allege any state action that prevented him from filing his petition; he does not assert any claim that relies on a new rule of retroactively applicable constitutional law; and the factual predicates upon which his claims are based concern events that took place during his trial proceedings and were discoverable in the exercise of due diligence.
Finally, Stephenson does not present any extraordinary circumstance beyond his control that would meet the judicially established criteria for disregarding the limitations period pursuant to the doctrine of equitable tolling. See Miller v. New Jersey Dept. of Corrections, 145 F.3d 616, 617-18 (3d Cir. 1998) (petitioner must show that he exercised reasonable diligence in bringing his claims; mere excusable neglect is not sufficient.)
Having determined that this petition is untimely and fails to meet any exception to the limitations period of § 2244(d)(1), this court makes the following:
RECOMMENDATION
AND NOW, this day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. It is also RECOMMENDED that a certificate of appealability not be granted.