Opinion
CIVIL ACTION NO. 03-6830
May 25, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition andpro se amended petition for a writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. On April 20, 2000, the petitioner pled guilty in the Court of Common Pleas for Philadelphia County to charges in two separate cases. In one case, No. 9805-0830, he pled guilty to charges involving the armed robbery of a car on September 23, 1997; in the other case, No. 9801-0099, he pled guilty to charges of aggravated assaulted resulting from a head on collision he caused by driving in the wrong direction on Interstate 95 while attempting to evade the police on October 24, 1997. The petitioner was sentenced to a term of incarceration of ten to twenty years for these charges, the sentences to be consecutive to any previous sentence he might have. He is presently incarcerated in a state correctional institution.
The amended petition was filed on April 15, 2004. However, the amended petition was not forwarded to the court promptly by the Clerk of this Court and so, on May 3, 2004, the court sent the petitioner a letter requesting that he submit a copy of the amended petition directly to chambers. The petitioner has not yet done so but, on May 24, 2004, the court located the amended petition in the file room maintained by the Clerk of this Court. The court has, therefore, reviewed the amended petition.
The petitioner received a sentence of ten to twenty years for No. 9805-0830 and a sentence of ten to twenty years for No. 9801-0099, these sentences were to be served concurrently with each other.
The petitioner raises several claims including: violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); ineffective assistance of counsel; malicious prosecution; involuntariness of his guilty plea; bias on the part of the trial judge; and a request that his sentences in these two cases run concurrently with other state sentences he has. The District Attorney for Philadelphia County has responded to the habeas petition and contends that the petition is time-barred. The court agrees and, for the reasons which follow, will recommend that the petition be dismissed as time-barred.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was enacted and it imposes a one year period of limitations on habeas corpus petitions. The time period begins to run on the latest of the following:
(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 could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). The statute also provides that "[t]he time that a properly filed application for state post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section." 28 U.S.C. § 2244(d)(2). The Third Circuit has explained that a properly filed application for state collateral relief is a "one submitted according to the state's procedural requirements, such as rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998).
In order to apply the habeas period of limitations, it is necessary to review the state procedural history in this case. The petitioner pled guilty on April 28, 2000 and he was sentenced on the same day. The petitioner did not pursue a direct appeal. Instead, on May 24, 2000, the petitioner sought post conviction relief with respect to No. 9805-0830 by filing a Post Conviction Relief Act ("PCRA") petition. While this petition was pending, the petitioner filed a PCRA petition to challenge his conviction in No. 9801-0099 on August 17, 2000. The two PCRA petitions were consolidated and counsel was subsequently appointed. Appointed counsel filed a no merit letter on February 7, 2002 and sought leave to withdraw as counsel. On April 15, 2002, the petitioner filed apro se amended PCRA petition. On May 31, 2002, the PCRA court dismissed the consolidated petitions and permitted counsel to withdraw.
The Post Conviction Relief Act is codified at 42 Pa. C.S.A. §§ 9541 et sea.
The petitioner filed his notice of appeal on July 10, 2002. On March 21, 2003, the petitioner's appeal was dismissed by the Superior Court of Pennsylvania because of his failure to file a brief. The petitioner then sought allowance of appeal ("allocatur") in the state supreme court. The state supreme court denied allocatur on May 14, 2003. The petitioner filed his habeas petition on December 22, 2003.
The petitioner did not pursue a direct appeal and so his conviction became final on May 28, 2000, which is when the thirty day period to appeal expired. See Pennsylvania Rule of Appellate Procedure 903. Under 28 U.S.C. § 2244(d)(1)(A), this would be the expected date on which the habeas period of limitations would begin to run. However, the court must consider whether the habeas period of limitations could begin to run on some other date pursuant to 28 U.S.C. § 2244(d)(1) (B)-(D).
The petitioner does not claim that state action taken in violation of the federal constitution or federal law prevented him from filing his habeas petition more promptly. Thus, 28 U.S.C. § 2244(d)(1)(B) does not call for a different starting date for the habeas period of limitations. None of the petitioner's habeas claims rely upon a new constitutional right announced by the Supreme Court (and made retroactively applicable to cases on collateral review) after the petitioner's conviction became final. Thus, 28 U.S.C. § 2244(d)(1) (C) does not call for a different starting date for the habeas period of limitations. Finally, the petitioner does not allege that, through the exercise of due diligence, he could only have learned the factual predicate for one or more of his claims after the date his conviction became final. Thus, 28 U.S.C. § 2244(d)(1)(D) does not call for a different starting date for the habeas period of limitations.
Since none of the alternative starting dates for the habeas period of limitations apply, the date the petitioner's conviction became final controls. On that date, May 28, 2000, the petitioner already had a PCRA petition pending with respect to No. 9805-0830. The PCRA petition served to toll the habeas period of limitations. See 28 U.S.C. § 2244(d)(2). However, the petitioner did not file a PCRA petition with respect to No. 9801-0099 until August 17, 2000. By that time, approximately 81 days of the habeas period of limitations had expired.
On May 31, 2002, the PCRA court dismissed the consolidated PCRA petitions. The petitioner had 30 days from that date to appeal to the Superior Court. See Pennsylvania Rule of Appellate Procedure 903. However, he failed to do so because did not file his notice of appeal until July 10, 2002, which was 10 days too late.
Under Third Circuit precedent, the petitioner's failure to timely appeal the denial of PCRA relief means both that his PCRA petition ceased to pend and that his PCRA petition ceased to toll the habeas period of limitations on the last date he could have filed a timely appeal, which was June 30, 2002. See Douglas v. Horn, 359 F.3d 257, 261 (3d Cir. 2004); Swartz v. Meyers, 204 F.3d 417, 420, 421 (3d Cir. 2000). Thus, on June 30, 2002, the habeas period of limitations began to run again for both convictions. For No. 9805-0830 it expired 284 days later; for No. 9801-099 it expired 365 days later. For both cases, the habeas period of limitations expired well before the habeas petition was filed on December 22, 2003.
Even though the habeas petition is time-barred under the provisions of the AEDPA, the habeas period of limitations is also subject to equitable tolling. See Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003). There are two general requirements for equitable tolling: (1) the existence of extraordinary circumstances which prevent the petitioner from asserting his rights, and (2) the petitioner's reasonable diligence in investigating and bringing his claims, Id. In petition and the amended petition, the petitioner makes no effort to demonstrate either of the two requirements for equitable tolling. Therefore, the court concludes that the habeas petition should be dismissed as time-barred.
The petitioner has also filed a motion for the appointment of counsel. Because the court finds that the habeas petition is time-barred, the motion for the appointment of counsel should be denied.
The court will also consider whether to recommend granting a certificate of appealability ("COA"). Because the court has disposed of the petition on the ground that it is time-barred, in order for the petitioner to obtain a COA, he must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). InSlack, the Supreme Court went on to explain that:
Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.Id. Further, the Supreme Court indicated that, since the petitioner must make showings with respect to both the procedural issue and the underlying, constitutional issue, a court may resolve the COA question if either showing is lacking, Id. at 484-85.
The court has concluded that the habeas petition is time-barred based upon well-established Third Circuit precedent. Further, the petitioner has failed to demonstrate either of the requirements for equitable tolling. Thus, the court finds that reasonable jurists would not debate the court's conclusion that the habeas petition is time-barred.
The court's recommendation follows.
RECOMMENDATION
AND NOW, this day of May, 2004, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that the petition for a writ of habeas corpus be DISMISSED as time-barred and that the petitioner's motion for the appointment of counsel be DENIED. It is further RECOMMENDED that a certificate of appealability not be granted.ORDER
AND NOW, this ___ day of _______, 2004, after careful and independent consideration of the petition for a writ of habeas corpus, the response thereto and after review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, it is hereby ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DISMISSED as time-barred;
3. The petitioner's motion for appointment of counsel (Document No. 9) is DENIED; and
4. A certificate of appealability is not granted.